Record and brief — Thevis v. United States

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Office - Supreme Court, U.S.

81-2073 FILED

MAY 10 1992

EX NDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United

OCTOBER TERM, 1981

MICHAEL G. THEVIS and

GLOBAL INDUSTRIES, INC.,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT *

EDWARD T. M. GARLAND WLan W. TAyLor, III

Counsel of Record Counsel of Record

STEVEN H. Sapow RONALD R. MASSUMI

GARLAND, NUCKOLLS ZUCKERMAN, SPAEDER, TAYLOR

& Carrs, P.C. & KOLKER

92 Luckie Street, N. W. 1201 Connecticut Ave., N. W.

Atlanta, GA 30303 12th Floor

(404) 577-2225 Washington, DC 20036

Counsel for (202) 775-1440

Global Industries, Inc. Bossy LEE Cook

Cook & PALMOUR

128 South Commerce Street

Summerville, GA 30747

(404) 857-3421

Counsel for Michael G. Thevis

„This case was decided by a panel of Unit B of the former

Fifth Circuit.

WILSON - Eres Printine CO. Inc. - 789-0096 - V/ASHINGTON. D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

1. Whether, when a defendant makes a government

witness unavailable, the witness’ out of court statements

are admissible regardless of whether they satisfy the

reliability tests for hearsay under Rule 804 of the Fed-

eral Rules of Evidence.

2. Whether jury instructions which leave the admis-

sibility of explosive hearsay evidence in the hands of the

jury, and which require the jury to convict on one count

in order to use that evidence in considering other counts,

thereby generating an added incentive to convict on the

first count, create an impermissibly serious doubt about

the accuracy of the fact-finding process.

3. Whether, as a matter of due process, a trial court

has inherent authority to order immunity for a crucial

defense witness who will otherwise invoke his fifth

amendment privilege and withhold his testimony.

(i)

LIST OF PARTIES

United States of America

Michael G. Thevis

Anna Jeannette Evans

Alton Bart Hood

Global Industries, Inc.

STATEMENT PURSUANT TO RULE 28.1

OF THE RULES OF THE SUPREME COURT

Petitioner Global Industries, Inc. is now an inactive

corporation. Fidelity Equipment Leasing Company, once

the parent of Global, is also inactive.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.

— . ———————

STATEMENT PURSUANT TO RULE 28.1.

TABLE OF AUTHORITIES —

OPINIONS DELIVERED BELOW W

J „„

CONSTITUTIONAL PROVISIONS

AND STATUTES .... ä —

STATEMENT OF THE CASE

REASONS FOR ALLOWING THE WRIT ..................

II.

III.

There Is a Division in the Circuits as to

Whether, when a Defendant Makes a Govern-

ment Witness Unavailable, the Federal Rules of

Evidence Have No Application to the Admiasi-

bility of the Witness’ Out-of-Court Statemenis..

The Court of Appeals’ Approval of an Instruc-

tion That the Jury Could Convict Thevis on

Counts One and Two Only If It Found Him

Guilty on Count Ten Is Directly Contrary To

Controlling Decisions of This Court

Whether a District Court Has Authority to

Confer Judicial Use Immunity upon a Defense

Witness Is an Issue about Which the Circuit

Courts Disagree and Should Be Settled by This

iv |

TABLE OF AUTHORITIES

Page

Beck v. Alabama, 447 U.S. 625 (1980) —................ 20, 21

Brady v. Maryland, 878 U.S. 83 (1963 22

California v. Green, 399 U.S. 149 (1970) 14, 15

Cerda v. United States, 488 F.2d 720 (9th Cir.

1973) Zenn 24

Chambers v. Mississippi, 410 U.S. 284 (1973 14, 15,

f 20, 22

Earl v. United States, 367 F.2d 581 (D.C. Cir.

1966) , cert. denied, 388 U.S. 921 (1987) 24

Estelle v. Williams, 425 U.S. 501 (1976) -.............. 20

Government of the Virgin Islands v. Smith, 615

J - 22, 28

Grochulski v. Henderson, 687 F.2d 50 (2d Cir.

1980), cert. denied, 450 U.S. 927 (19817 24

Illinois v. Allen, 397 U.S. 887 (1970 15

In re Daley, 549 F. 2d 469 (7th Cir. 1977) 24

Jackson v. Denno, 378 U.S. 868 (1964) 17, 18, 21

Jackson v. Virginia, 448 U.S. 307 (1979) .............. 20

Mattoz v. United States, 156 U.S. 287 (1895) 14

Morissette v. United States, 342 U.S. 246 (1952) 20

Murphy v. Waterfront Commission of New York,

Arr.... ere 2) ae 22

Patterson v. New York, 482 U.S. 197 (1977) 20

Simmons v. United States, 390 U.S. 377 (1968)

Taylor v. United States, 414 U.S. 17 (1978)..........

Thompson v. Garrison, 516 F.2d 986 (4th Cir.),

cert. denied, 423 U.S. 988 (1975) 24

United States v. Alessio, 528 F.2d 1079 (9th Cir.),

cert. denied, 426 U.S. 948 (1976) 24

United States v. Allstate Mortgage Corp., 507

F.2d 492 (7th Cir. 1974 Pe RAED AME FEF 24

United States v. Bailey, 581 F.2d 341 (3d Cir.

BATH ibe Serna RR Aaa: Sea aaa Uae il

United States v. Balano, 618 F.2d 624 (10th Cir.

1979), cert. denied, 449 U.S. 840 (1980) 10, 11, 12,

18, 15

United States v. Carlson, 547 F.2d 1846 (8th Cir..

1976), cert. denied, 481 U.S. 914 (1977) 10, 11

United States v. Chagra, 669 F.2d 241 (5th Cir.

1982) i 23. 24

TABLE OF AUTHORITIES—Continued

Ynited States v. D’Apice, 664 F.2d 75 (5th Cir.

1981)

United States v. Davis, 628 F.2d 188 (ist Cir.

United States v. Fiore, 443 F.2d 112 (2d Cir.

c — —

United States v. Garner, 574 F.2d 1141 (4th Cir. ),

cert. denied 489 U.S. 986 (197

United States v. Gonzales, 559 F.2d 1278 (5th Cir.

+ eR AA Ge IE aa Ris 2 OES Son MERE I ah

United States v. Graham, 548 F.2d 1802 (8th Cir.

ere eee

United States v. Herbst, 641 F.2d 1161 (5th Cir.

1981)

United States v. Herman, 589 F.2d 1191 (ad Cir.

1978), cert. denied, 441 U.S. 918 (197999

United States v. Horwitz, 622 F.2d 1101 (2d Cir.

1980), remanding United States v. DePalma,

476 F. Supp. 775 (S. D. N. V. 1979999

United States v. Housand, 550 F.2d 818 (2d Cir.

1977), cert. denied, 481 U.S. 970 (197

United States v. James, 590 F.2d 575 (5th Cir.

RRA eS eR es a

United States v. Jenkins, 470 F.2d 1061 (9th Cir.

1972), cert. denied, 411 U.S. 920 (1973

United States v. Klauber, 611 F.2d 512 (4th Cir.

1979) , cert. denied, 481 U.S. 970 (197)

United States v. Lang, 589 F.2d 92 (2d Cir.

/ Ree SES: Fe Re

United States v. Lenz, 616 F.2d 960 (6th Cir.),

cert. denied, 447 U.S. 929 (1980)

United States v. Morrison, 585 F.2d 223 (3d Cir.

/ /!

United States v. Pacelli, 470 F.2d 67 (2d Cir.

1972), cert. denied, 410 U.S. 988 (1973

U.S. v. Praetorious, 622 F.2d 1054 (2d Cir. 1980),

cert. denied, 447 U.S. 869 (1980))ÿ:::

United States v. Ramsey, 503 F.2d 524 (7th Cir.

1974), cert. denied, 420 U.S. 982 (197555

Page

TABLE OF AUTHORITIES—Continued

Page

United States v. Rocco, 587 F.2d 144 (3d Cir.

1 24

United States v. Sarmiento-Peres, 683 F.2d 1092

, — —— 11

United States v. Smith, 542 F.2d 711 (7th Cir.

. 24

United States v. Stofsky, 527 F.2d 287 (2d Cir.

1975), cert. denied, 429 U.S. 819 (1976) 24

United States v. Thevis, 665 F.2d 616 (5th Cir.

1 passim

United States v. Thevis, 84 F.R.D. 57 (N.D.Ga.

FR PERE a RRR a Na RC 1, 6, 12

United States v. Thevis, 84 F.R.D. 47 (N.D.Ga.

% 1

United States v. . Thevis, 474 F. Supp. 117 (N. D.

enen 1

United States v. Thevis, 414 F. Supp. 134 (N. D.

„ eee eee 1

United States v. Turkish, 623 F.2d 769 (2d Cir.

1980), cert. denied, 449 U.S. 1077 (19817 23

United States v. Turner, 475 F. Supp. 194 (E.D.

Mich. 1978) c 11

United States v. West, 574 F.2d 1131 (4th Cir.

111% ˙AA—A—A—A — —— 11

United States v. Wright, 588 F.2d 31 (2d Cir.

1978), cert. denied, 440 U.S. 917 (19799 24

Statutes and Other Authorities

United States Constitution, Article passim

United States Constitution, Article VI —.............. passim

, ˙ ..... 5

e . S e 5

. . 5

r EIR oa TES Se 6,12

28 U.S.C. § 1254(1) ot sie 2

Rule 104, Federal Rules of Evidence 8 18

Rule 802, Federal Rules of Evidence ee 2, 13, 14

Rule 804, Federal Rules of Evidence 2, 8, 9, 10, 11, 15

Rule 403, Federal Rules of Eviden eee 9

vii

TABLE OF AUTHORITIES—Continued

S. Rep. No. 93-1277, 98d Cong., 2d Sess. (1973),

reprinted in [1974] U.S. Code Cong. & Ad.

.. r

4 Weinstein’s Evidence, Cumulative Supplement

204 (December 1961)

Flanagan, Compelled Immunity for Defense Wit-

nesses: Hidden Costs and Questions, 56 NOTRE

DAME Law. 447 (1981)

Mikkeltvedt, United States v. Alessio—Due Proe-

ess of Law and Federal Grants of Witness Im-

munity for Defense Witnesses, 31 MERCER L.

t,, .

Remington [Foreword to student notes on Sand-

strom v. Montana and Beck v. Alabama], 1981

Wis. L. Rev. 618 (1961) ........................................

Westen, The Compulsory Process Clause, 73

r cities ee

Note, The Due Process Right to the Immunization

of Defense Witnesses, 22 B.C.L. REV. 299

Note, Judicial Immunity for Criminal Defense

Witnesses: A Safeguard for the Defendant's

Sizth Amendment Right to Compulsory Process,

16 New ENG. L. REV. 481 (198177

Note, Defense Witness Immunity: A Growing

Controversy—Government of Virgin Islands v.

Smith, 58 TEMPLE L.Q. 1170 (1980)

Note, The Sixth Amendment Right to Have Use

Immunity Granted to Defense Witnesses, 91

Harv. L. REv. 1266 (1978) a i FS

Note, “The Public Has a Claim to Every Man’s

Evidence”: Defendant’s Constitutional Right

to Witness Immunity, 30 STAN. L. REV. 1211

(1978)

Note, Beck v. Alabama: The Right to a Lesser

Included Offense Instruction in Capital Cases,

1981 Wis. L. RV. 560 (198172

Note, Separation of Powers and Defense Witness

Immunity, 66 Gro. L.J. 51 (1977)

Page

viii

TABLE OF AUTHORITIES—Continued

Page

Note, A Re-Ezamination of Defense Witness Im-

munity: A New Use for Kastigar, 10 Harv. J.

LEGIs. 74 (1972) 25

Note, Right of the Criminal Defendant to the

Compelled Testimony of Witnesses, 67 COLUM.

L. REv. 953 (1967) 25

INTHE |

Supreme Court of the United States

OCTOBER TERM, 1981

MICHAEL G. THEVIS and

GLOBAL INDUSTRIES, INC.,

0 Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS DELIVERED BELOW

Published Decisions:

United States v. Thevis, 665 F.2d 616 (5th Cir.

(1982)

United States v. Thevis, 474 F. Supp. 117 (N. D.

Ga. 1979)

United States v. Thevis, 474 F. Supp. 134 (N. D.

Ga. 1979)

United States v. Thevis, 84 F. R. D. 47 (N. D. Ga.

1979)

United States v. Thevis, 84 F. R. D. 57 (. D. Ga.

1979)

Unpublished Decisions:

United Statvs v. Thevis, Criminal No. CR 78-180A

(N.D.Ga.), Order on Posttrial Motions, December

14, 1979

1 Former Fifth Circuit case, Section 9(1) of Public Law 96-462—

October 14, 1980.

JURISDICTION

Petitioners seek review of a judgment of the former

Fifth Circuit Court of Appeals dated January 11, 1982.

Rehearing and rehearing en banc were denied by orders

dated March 3, 1982. On March 25, 1982, Circuit Judge

Kravitch granted a motion by defendant Anna Jeanette

Evans to stay the mandate pending filing and determina-

tion of a petition for certiorari in this Court.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

Article VI of Amendments to the United States

Constitution:

In all criminal prosecutions, the accused shall en joy

the right. . . to be confronted with the witnesses

against him; [and] to have compulsory process for

obtaining witnesses in his favor

Article V of Amendments to the United States

Constitution:

No person shall . . . be deprived of life, liberty, or

property, without due process of law...

Rule 802 of the Federal Rules of Evidence:

Hearsay is not admissible except as provided by

these rules or by other rules prescribed by the Su-

preme Court pursuant to statutory authority or by

Act of Congress.

Rule 804 of the Federal Rules of Evidence:

(a) Definition of unavailability. “Unavailability as

a witness” includes situations in which the declar-

ant

(2) 22 in refusing te testify concerning

subject matter of his statement despite

perfor py wg urt to do so; or

(3)

(4)

testifies to a lack of memory of the subject

matter of his statement; or

is unable to be present or to testify at the

hearing because of death or then —

physical or mental illness or infirmity .

A declarant is not 3 as a witness if his

exemption, refusal, claim of lack of memory, in-

ability, or absence is due to the procurement or

wrongdoing of the proponent of his statement for the

purpose of preventing the witness from attending or

testifying.

(b) Hearsay exceptions. The following are not

excluded by the hearsay rule if the declarant is un-

available as a witness:

(1)

(2)

(3)

Former testimony. Testimony given as a

witness at another hearing of the same or

a different proceeding, or in a deposition

taken in compliance with law in the course

of the same or another proceeding, if the

party against whom the testimony is now

offered, or, in a civil action or proceeding,

a predecessor in interest, had an opportu-

nity and similar motive to develop the testi-

— by direct, cross, or redirect examina-

on.

Statement under belief of impending death.

In a prosecution for homicide or in a civil

action or proceeding, a statement made by

a declarant while believing that his death

was imminent, concerning the cause or cir-

cumstances of what he believed to be his

impending death.

Statement against interest. A statement

which was at the time of its making so far

contrary to the declarant’s pecuniary or

proprietary interest, or so far tended to

subject him to civil or criminal liability, or

(4)

(5)

tending to expose the declarant to criminal

liability and offered to exculpate the ac-

cused is not admissible unless corroborating

circumstances clearly indicate the trust-

worthiness of the statement.

Statement of personal or family history.

— A statement concerning the declarant’s

birth, adoption, marriage, divorce,

2 relationship by blood, adoption,

or marriage, ancestry, or other similar fact

of personal or family history, even though

declarant had no means of acquiring per-

sonal knowledge of the matter stated; or

(B) a statement concerning the foregoing

matters, and death also, of another person,

if the declarant was related to the other by

blood, adoption, or marriage or was so in-

‘imately associated with the other’s family

a» to be likely to have accurate information

concerning the matter declared.

Other exceptions. A statement not specif-

ically covered by any of the foregoing ex-

ceptions but having equivalent circumstan-

tial guarantees of trustworthiness, if the

court determines that (A) the statement is

offered as evidence of a material fact; (B)

the statement is more probative on the

point for which it is offered than any other

evidence which the proponent can procure

through reasonable efforts; and (C) the

general purposes of these rules and the

interests of justice will best be served by

admission of the statement into evidence.

However, a statement may not be admitted

under this exception unless the proponent

of it — known to the adverse party

sufficiently in advance of the trial or hear-

ing to provide the adverse party with a

fair opportunity to prepare to meet it, his

intention to offer the statement and the

particulars of it, including the name and

address of the declarant.

STATEMENT OF THE CASE

Petitioner Michael G. Thevis was convicted on Counts

One, Two and Ten of a ten-count indictment in the

United States District Court for the Northern District

of Georgia. Global Industries, Inc. was convicted on

Counts One and Two. li was not charged in Count Ten.

Count One alleged that Thevis, Global and others

committed acts of racketeering in the course of conduct-

ing an enterprise, in violation of 18 U.S.C. § 1962(c).

Count Two alleged that they conspired to do so, in viola-

tion of 18 U.S.C. §1962(d). Count Ten alleged that

Thevis, along with Anna Jeanette Evans and Alton Bart

Hood, conspired in violation of 18 U.S.C. § 241 to deprive

Roger Dean Underhill of his right to be a witness in

grand jury and trial proceedings against Thevis and

that the conspiracy resulted in the death of Underhill

and another.’

A panel of the former Fifth Circuit Court of Appeals

affirmed the convictions on January 11, 1982. The panel

denied rehearing and the court denied rehearing en banc

by orders dated March 3, 1982.

The indictment upon which petitioners were tried

superseded an earlier indictment. The first indictment

was dismissed upon the government’s motion. The sec-

end indictment, filed after Underhill’s murder, eliminated

some of the defendants originally charged and added

2 Evans and Hood were also convicted and their convictions were

affirmed. They have each filed a petition for certiorari with this

court.

allegations that Thevis killed Underhill. The Underhill

murder was included both as an act of racketeering in

Counts One and Two and as the substance of Count Ten.

The substance of the RICO charges in Counts One

and Two was that Thevis, Global and others committed

acts of racketeering to advance and protect an associa-

tion in fact organized to operate a pornography busi-

ness through unlawful means. The acts of racketeering

consisted of the murder of two Thevis competitors,

Kenneth Hanna and James Mayes, the arson of two

buildings belonging to other competitors, and the murder

of Underhill to silence him.

Roger Underhill had been a Thevis employee and

protegee until he became disaffected. He claimed to be

a witness to or a participant in the Hanna and Mayes

murders as well as the arsons. The trial court correctly

observed that he was the “chief architect” of the prose-

eution.“ He was expected to be its key witness.

Underhill began cooperating with federal agents in

January 1977 while on furlough from prison on unre-

lated charges. He was then no longer employed by

Thevis, and was disaffected. He had in fact filed an

action against Thevis seeking treble damages under the

civil provisions of RICO, 18 U.S.C. § 1964.

When Underhill agreed to cooperate, he was granted

immunity. He then underwent a series of interviews,

three days of which were tape-recorded and transcribed.

He reiterated relevant portions of his interviews before

a federal grand jury. The first indictment was returned

on June 10, 1978. At that time Thevis was a fugitive,

having escaped from federal custody on obscenity charges.

At the time of his escape he was being held in an Indi-

ana county jail to assure his availability for civil pro-

ceedings concerning one of the arsons.

United States v. Thevis, 84 F.R.D. 57, 70 (N. D. Ga. 1979).

Underhill was killed by gunshots on October 25, 1978,

as he was showing property to a potential purchaser.

The potential purchaser was also killed. Thevis re-

mained a fugitive until November 9, 1978 when he was

arrested in Bloomfield, Connecticut, in the company of

Jean te Evans. When arrested, Thevis had a copy of

the transcript of Underhill's F. B. I. interviews in his

possession. That transcript was to assume major sig-

nificance in vu. trial on the superseding indictment.

The government presented its case in two phases. It

proceeded first with its proof on Count Ten of the in-

dictment, the Inderhill murder conspiracy. In its proof

on that count, the government was permitted, over ob-

jection, to introduce the entire transcript of Underhill’s

conversations with the F.B.I.

The court permitted the ju.y to read the entire tran-

script even though most of it did not concern the charges

in the indictment. In his conversations with the agents,

Underhill had ranged well beyond the specific acts of

racketeering which would become the original RICO

charges. He painted a detailed picture of Thevis as a

systematic law violator, thief, and philanderer. Ac-

cording to Underhill, Thevis plotted thirteen separate

murders and committed numerous assaults, acts of ter-

ror, arsons, and bombings. He said that Thevis was

a petty thief, an extortionist, a defrauder and a cor-

rupter of government officials. He repeatedly volun-

teered his opinion that Thevis had Mafia connections,

dealt in “hard core pornography,” “messed around” with

female office workers, “kept” one woman for years, and

procured an abortion for another. According to Under-

hill, Thevis’ lawyer described him as a “pathological

liar.”

The district court instructed the jury that the exhibit

was admitted not for its truth but only as it bore on

the motive of any individual who had knowledge of it.“

* United States v. Thevis, 665 F.2d 616, 634 (5th Cir. 1982).

The government then completed its proof on Count Ten

anu proceeded to Counts One and Two.

in its proof of the RICO charges, the government

offered selected portions of the transcripts, as well as

Unéerhill’s grand jury testimony. The court held that

thi. evidence, although concededly hearsay, was admissi-

bi for its truth under Rule 804 (b) (5) of the Rules of

E idence. It found that Underhill’s conversations and

graud jury testimony possessed the required indicia of

reliability for admission under the? rule.“

It also held that, notwithstanding compliance with

Pule 804 (b) (5), admission of the evidence would vio-

late petitioners’ rights to confrontation under the sixth

amendment, unless the government established by clear

and convincing evidence that Thevis had waived that

right. It found such a waiver based upon the govern-

ment’s proof on Count Ten.“ It instructed the jury that

they might consider the selected portions of the tran-

script for their truth, notwithstanding the earlier in-

structions to consider the entire transcript only on the

issue of motive. In its final instructions, it ordered the

jury not to consider. the Underhill hearsay unless it

found Thevis guilty on Count Ten.“

Prior to trial, petitioners filed a motion requesting

the court to order George Thevis, father of Michael

Thevis, to testify under court ordered immunity. Peti-

tioners proffered, in camera and ex parte, that George

Thevis would testify that, on the date and at the time

of the Underhill murder, he was with Thevis and Hood

at a motel in Atlanta, Georgia. The elder Thevis refused

to testify because of potential prosecution for “harbor-

ing” his son, who was then an escaped prisoner. The

trial court denied this request.

Id. at 627.

Id.

7 Id, at 647.

Petitioners urged a number of errors on appeal. Prin-

cipally, they argued that the district court erred in

i ons of Underhill’s F.B.I. inter-

ury testimony as substantive evi-

dence on Counts One and Two and in permitting the

jury to receive the entire transcript and to read the

multitude of allegations by Underhill about Thevis, all

unrelated to the charges at trial.

The court of appeals affirmed the district court’s ad-

mission of the exhibit in its entirety as an appropriate

exercise of discretion under Rule 403 of the Federal

Rules of Evidence.* It held that the trial court’s limiting

instructions were “easily understandable to the jury,”

and that the probative value of the exhibit was at least

as strong as the “potential for unfair prejudice.” ®

With regard to the admission of selected portions of

the Underhill F.B.I. conversations and his grand jury

testimony, the court of appeals found it unnecessary to

review the district court’s determination that they pos-

sessed that exceptional reliability necessary for admis-

sion under Rule 804(b)(5). It held that where the

evidence demonstrated that a defendant had made a wit-

ness unavailable for trial, the defendant waived not only

his rights to confrontation under the sixth amendment

but also his right to challenge admission of the evidence

under the hearsay rules.“

The court of appeals found no error in the district

court’s refusal to grant use immunity to the defense

witness."

Id. at 634-35.

Id.

10 Jd. at 627-88.

11 Id. at 638-41.

REASONS FOR ALLOWING THE WRIT

I. There Is a Division in the Circuits as to Whether,

When a Defendant Makes a Government Witness Un-

available, the Federal Rules of Evidence Have No

Application to the Admissibility of the Witness’ Out-

of-Court Statements.

Three circuits have now dealt directly with the admis-

sibility of hearsay from a declarant made unavailable

by acts of a party. Review of those decisions and com-

mentary on them discloses widening disagreement. There

is obvious confusion as to whether the rule governing

statements by unavailable declarants, Rule 804 of the

Federal Rules of Evidence, applies at all when a party

has made a witness against him unavailable. The Tenth

Circuit in United States v. Balano™ and the Fifth Cir-

cuit in this case™ hold that making a witness unavail-

able waives the right to confrontation and the right to

object on hearsay grounds, thus eliminating the need

to make any additional determination of reliability as

would be required by Rule 804. On the other hand, in

United States v. Ca ™ the Eighth Circuit required

compliance with the reliability requirement of the rule

and a waiver of confrontation rights. This Court should

grant the writ to resolve this issue.

Petitioners demonstrate below that the Balano-Thevis

rule is incorrect and that hearsay from an unavailable

declarant must always be tested under Rule 804. If this

Court agrees, it should then undertake to resolve the in-

creasingly disparate readings of that subsection of the

rule most frequently invoked for unavailable government

12618 F.2d 624 (10th Cir. 1979), cert. denied, 449 U.S. 840

(1980).

18 United States v. Thevis, 665 F.2d 616 (5th Cir. 1982).

4547 F.2d 1346 (8th Cir. 1976), cert. denied, 481 U.S. 914

(1977). The district court in this case followed Carlson in its two-

step procedure.

witnesses—subsection (b) (5). The decisions are divided

on whether and, if so when, the out-of-court testimony

of an immunized or cooperating witness can satisfy the

“equivalent circumstantial guarantees of trustworthi-

ness” required by the rule. The Fourth and Eighth

Circuits have construed the rule to admit grand jury

testimony of an immunized witness.“ The Fifth Circuit

has expressed serious reservations as to whether such

testimony ever meets the necessary guarantees of trust-

worthiness.” The Third Circuit seems to agree with

the Fifth.”

Prior to adoption of the Federal Rules of evidence,

the Second Circuit held that use of grand jury testimony

violated both the hearsay rule and the Confrontation

Clause.“

This is an appropriate case to resolve both the conflict

between Balano and Carlson and the disarray in the

circuits concerning the rigor of the reliability require-

ment in Rule 804 (b) (5). In this case, the declarant

was an admitted perjurer who had, at different times,

told different stories incriminating different people to

various law enforcement officers. For the F. B. I. inter-

views, he was unsworn. He had financial incentives *

15 United States v. West, 574 F.2d 1181 (4th Cir. 1978); United

States v. Garner, 574 F.2d 1141 (4th Cir.), cert. denied, 489 U.S.

936 (1978); United States v. Carlson, 547 F.2d 1346 (8th Cir.

1976), cert. denied, 481 U.S. 941 (1977).

16 Thevis, 665 F.2d at 629; see also United States v. Sarmiento-

Perez, 633 F.2d 1092 (5th Cir. 1978); United States v. Gonzales,

559 F.2d 1278 (5th Cir. 1977).

17 United States v. Bailey, 581 F.2d 341, 345 n.4 (3d Cir. 1978)

see also United States v. Turner, 475 F. Supp. 194, 198 (E.D.

Mich. 1978) ; United States v. Garner, 489 U.S. 936 (1978) (opinion

of Justices Stewart and Marshall dissenting from denial of cer-

tiorari).

18 United States v. Fiore, 443 F.2d 112 (2d Cir. 1971).

1® Underhill had filed a $5 million civil RICO action against

petitioner. Conviction of petitioner on criminal RICO charges

and was under pressure from federal agents to incrimi-

nate Thevis. There was also evidence that he suffered

from paranoid schizophrenia. In a previous case his

counsel had sought to defend on the ground of insanity.”

The district court noted Underhill's history of perjury,

his motives to lie, and the “darker nature of his char-

acter.”** It even remarked that Underhill did not ap-

pear to have great respect for the truth when it did not

serve his purposes.“ It held, nevertheless, that the sanc-

tions for lying, perjury and loss of immunity, as well as

corroboration of some aspects of his testimony, guaran-

teed its trustworthiness.

Not surprisingly, the court of appeals chose not to

deal with the district court’s endorsement of Underhill’s

reliability. Embracing the Balano rule, it avoided the

inquiry altogether. That holding was error.

The Balano rule has been sharply and correctly criti-

cized by the leading commentator on the Federal Rules

of Evidence.“ It is nevertheless seductive because, in

a simple way, it insures that a defendant who procures

the absence of a witness will not profit from his wrong-

doing. Its salutary impulse obscures the need for a

more careful analysis of the relationship between the

rule against hearsay and the Confrontation Clause than

the Tenth and Fifth Circuits undertook, however. Those

courts fail to account for the different interests protected

would have been of enormous benefit to Underhill as petitioner

would have been estopped from denying the predicate acts in the

civil case. 18 U.S.C. § 1964.

See the district court’s discussion of Underhill’s reliability in

United States v. Thevis, 84 F.R.D. 57, 64-65 (N.D.Ga. 1979).

21 Jd. at 64.

* Id.

234 Weinstein’s Evidence, Cumulative Supplement 204 (Decem-

ber 1981).

by the two principles and for the different consequences

to a trial when they are not applied. Unless corrected,

the Balano-Thevis rule will produce mischief far out of

proportion to the evil at which it is directed.

The Balano-Thevis rule provides that once the govern-

ment proves a defendant made a witness unavailable,

the witness’ hearsay testimony, in whatever form, is ad-

missible regardless of its reliability.“ Those courts ap-

parently are prepared to accept the consequences to the

fact-finding process from evidence heretofore too unreli-

able to be considered.

This is a startling development in the jurisprudence of

this country. Neither this Court which drafted the Rules

of Evidence nor the Congress which enacted them in-

tended or approved such a principle. Rule 804 admits

hearsay when declarants are unavailable, by reason of

death, intimidation, or otherwise, but it does so under

enumerated and limited conditions designed to insure

reliability. It does not permit the court to disregard

those conditions when the opponent of the evidence caused

the witness’ absence. To the contrary, the drafters made

it clear, in Rule 802, that the listed exceptions were ex-

clusive :

Hearsay is not admissible except as provided by

these rules or by other rules prescribed by the

Supreme Court

The Senate Judiciary Committee explained that Rule

802 expressed Congress’ clear intent.

* According to the Thevis court, the trial court may inquire

into its reliability only to determine that it is not so “totally un-

reliable” as to offend due process. 665 F.2d at 1

definition of “totally unreliable” does not appear, but short of the

obvious ravings of a madman, very little is “totally unreliable.”

Because the panel explicitly intends to eliminate the reliability

inquiry of the rule, it presumably did not intend to revive it by the

language in note 17.

[T]he Congress must ensure that the (evidence)

rule-making process is not delegated to the un-

bridled discretion of the courts—-not because of any

distrust of the courts but because of the dictates of

sound government.”

The court of appeals concluded that, Rule 802 notwith-

standing, its one-step waiver analysis is justified by the

“similarity of interests” underlying the Confrontation

Clause and the rule against hearsay. A similarity of

interest no doubt exists between these rules, for both con-

tribute ultimately to the integrity of the fact-finding

process.“ The values protected are, however, quite dif-

ferent.

The Confrontation Clause insures the right of one

placed on trial to require witnesses literally “to confront”

him and the jury. This right “forms the core of the

values” furthered by the Clause.“ In Mattox v. United

States * the Court wrote that the Clause envisions

a personal examination and cross-examination of the

witness, in which the accused has an opportunity,

not only of testing the recollection and sifting the

conscience of the witness, but of compelling him to

stand face to face with the jury in order that they

may look at him, and judge by his demeanor upon

the stand and the manner in which he gives his

testimony whether he is worthy of belief.

Confrontation contributes to the integrity of the fact-

finding process, but only as a consequence of securing to

the accused the right to compel his accuser to give his

evidence in full view of the jury and defendant. A de-

20 8. Rep. No. 93-1277, 93d Cong., 2d Sess. (1973), reprinted in

[1974] U.S. Code Cong. & Ad. News 7075, 7079.

2 Chambers v. Mississippi, 410 U.S. 284, 295 (1973), quoting

Berger v. California, 393 U.S. 314, 315 (1969).

* California v. Green, 399 U.S. 149, 157 (1970).

28 156 U.S. 237, 242-248 (1895).

fendant can, therefore, knowingly and intelligently waive

this right, by absenting himself from the trial“ or, after

warnings, by obstructing the proceedings so as to require

his physical removal from the courtroom.”

The personal right of a defendant to confront his ac-

cuser is waivable by knowing conduct which makes it

obviously impossible. It is a different thing altogether

to say that unreliable evidence becomes admissible by

reason of the defendant’s misconduct prior to trial.

This Court has repeatedly observed that the “overlap”

between the Clause and the hearsay rule is aot com-

plete.* Indeed, evidence may offend the hearsay rule but

not the Confrontation Clause.“ In short, the defendant

has personal confrontation interests distinct from the

judicial interest in excluding evidence so unreliable that

it infects the integrity of the fact-finding process. The

Balano-Thevis rule fails to recognize that distinction.

That rule too. easily equates the defendant’s personal

right to confront with the trial court’s duty to examine

hearsay under the strictures of Rule 804. Proponents of

this rule may assume that a defendant who intimidates

a witness implicitly admits the truth of the declarant’s

statements and that bypassing the hearsay rule does no

harm to the integrity o“ the fact-finding process, or they

may feel that an erroneous verdict is an appropriate

penalty for the misconduct. Neither is acceptable policy.

The variety of human conduct suggests that it is not only .

2 Taylor v. United States, 414 U.S. 17 (1973).

% [Uinois v. Allen, 397 U.S. 337 (1970).

1 California v. Green, 399 U.S. 149, 155 (1970) ; see also Cham-

bers v. Mississippi, 410 U.S. 284 (1973).

* United States v. Pacelli, 470 F.2d 67, 69-70 (2d Cir. 1972),

cert. denied 410 U.S. 983 (1973).

the guilty who intimidate witnesses“ and that it is not

only truthful witnesses who claim to be intimidated.

The inquiry into a defendant’s guilt on underlying

charges is separate and must be separated from prosecu-

tion for making witnesses unavailable. Defendants who

engage in such conduct certainly should not profit from

it. But society has sanctions for murder and obstruction

of justice. The same evidence which supports the findings

of waiver will support prosecution for serious crime.

Fears that the guilty will go free are unwarranted.

II. The Court of Appeals’ Approval of an Instruction

That the Jury Could Convict Thevis on Counts One

and Two Only If It Found Him Guilty on Count Ten

Is Directly Contrary to Controlling Decisions of This

Court.

In the preceding section, petitioners demonstrated that

the court of appeals’ treatment of the relationship be-

tween the Confrontation Clause and the rule of evidence

designed to insure reliability in the fact-finding process

was misguided. In this section, petitioners seek review

of the court of appeals’ approval of the manner in which

the trial court submitted the Underhill hearsay to the

jury. As will be clear, that procedure constituted plain

error.

In its final instructions, the trial court told the jury

to first consider Count Ten, the Underhill-Galanti murder

count; then, if they found Thevis guilty of that count,

they could consider Underhill’s 302’s and his grand jury

statements for their truth as to Counts One and Two,

the RICO counts.“ On appeal petitioners argued that

this instruction was plain error because it gave the jury

38 Consider the defendant who, outraged at false charges made

against him, kills the witness. Society has no interest in convict-

ing him on the false charges but a legitimate and strong interest

in prosecuting him for murder.

* Thevis, 665 F.2d at 647.

an artificial incentive to convict on Count Ten.“ “It

created the irreparable danger that the jury would be

coerced into convicting appellants on Count Ten and

would do so using the very evidence whose admissibility

it was to decide.

In order for the jury legitimately to use the Underhill

statements substantively for their truth, the instructions

required that they make a putatively independent deter-

mination of guilt on Count Ten. In fact, though, it was

a practical impossibiilty for the jury to ignore their sub-

stance in this context, for they had been told at many

points throughout the trial that the same statements

were admissible,’ at least conditionally, for both their

turth and as evidence of motive. And, recognizing that

the statements were crucial to all counts, the jury was

subject to a “natural and potent pressure” to arrive at

a resolution permitting them free use of the substance

of those statements.“

%5 Jd. The Court of Appeals noted correctly that the defendants

requested this instruction. But as explained in Joint Reply Brief

of Appellants at 6, “[S]Jince the trial court had repeatedly denied

their motions to sever count ten... the instruction was the only

remaining alternative that might diffuse the devastating prejudice

that the defendants were subjected to as a result of the trial of

count ten together with counts one and two... That the defend-

ants requested this instruction evidences nothing more than a final,

albeit unsuccessful, attempt to protect their fundamental right to a

fair trial.”

90 Joint Brief of Appellants at 79.

* By the time the jury received its final instructions it had be-

come intimately familiar with the contents of the Underhill hearsay

since it had earlier been admitted in whole on the question whether

Thevis, Evans and Hood had a motive to kill Underhill. Excerpts

had been admitted also as proof on Counts One and Two, but the

jury was told that it should disregard the excerpts sdmitted on

these counts if it was unconvinced that Thevis was guilty of the

Count Ten conspiracy to murder Underhill. Thevis, 665 F.2d at

647-648.

38 Jackson v. Denno, 378 U.S. 368, 382 (1964). In Jackson v.

Denno, a New York procedure which required the court to receive

In effect, the ultimate determination of the admis-

sibility of the Underhill material was left in the hands

of the jury. Since the adoption of Rule 104,“ Fed. R.

Evid., however, the federal courts have recognized that

the jury should have no role in deciding the admissibility

of evidence.” It is precisely because the jury is unable

to resist the substance of a piece of testimony in judging

its admissibility that this function must be reserved for

the judge.“ Leaving the question of admissibility of

obviously relevant evidence to the jury “endangers the

integrity of the trial because the relevancy and appar-

ent probative value of the statements may be so highly

prejudicial as to color other evidence even in the mind

of a conscientious juror, despite instructions to disregard

the statements or to consider them conditionally.” “

Moreover, in this case, without the Underhill state-

ments

a defendant’s confession and leave to the jury the ultimate deter-

mination of its voluntariness was ound constitutionally deficient

because the jury's decision or. voluntariness, and hence admissibility,

would not be uninfluenced by their impression of the truth or falsity

of the confession. 378 U.S. at 379. The procedure, therefore, “did

not afford a reliable determination” of the threshold question of

admissibility. Id. at 377. In like fashion, in this case the more im-

pressed were the jurors by the apparent truthfulness of the Under-

hill statements, and the more obvious it was to them that the

substantive admissibility of these statements was essential to con-

viction, the more likely were they to succumb to the “natural and

potent pressure” to make the finding (i.e., guilt on Count Ten)

necessary for admissibility. Jd. at 382.

Rule 104 states that “Preliminary questions concerning the

qualification of a person to be a witness, the existence of a privilege

or the admissibility of evidence shall be determined by the court. . .”

0 F.., United States v. James, 590 F.2d 575, 580 (5th Cir.

1979) (en banc) (holding admissibility of coconspirator declarations

to be determined by judge alone).

*1 See Jackson v. Denno, 378 U.S. 368.

James, 590 F.2d t 579.

the evidence of Thevis’ guilt on counts one and two

was flimsy, to say the least. Thus, even if the jury

wanted to convict Thevis on counts one and two, it

could not do so unless it found him guilty on count

ten. It faced an all or nothing deliberation.“

The instructions requiring the jury to render a guilty

verdict on the murder conspiracy count as a predicate

to use of the irresistibly macabre contents of the Under-

hill hearsay in their consideration of the other counts

generated a natural, but gravely prejudicial, pressure to

convict on Count Ten or else allow the defendant Thevis

to go unpunished. When, as here, jury instructions, by

virtue of their own internal logic, naturally propel the

jury’s deliberative processes ir one direction, the relia-

bility of the entire fact-finding process is cast into ques-

tion. Recent decisions of this Court manifest its recog-

nition of the need to “look carefully at the verdicts sub-

mitted to the jury and the instructions given by the

trial judge to insure that there is not an impermissibly

serious doubt about the accuracy of the fact-finding

process..

Reliability of the fact-finding process is, without ques-

tion, the central goal of the adversarial system of crim-

inal justice. This Court has “repeatedly indicated that it

will not tolerate any procedure or occurrence that seri-

ously threatens the integrity of the fact-finding process.

The function of legal process, the Court has written, is

to minimize the risk of erroneous decisions. Where there

is actual danger that the jury would convict on the basis

of extraneous considerations, failure to provide safe-

43 Joint Brief of Appellants at 80. The Court of Appeals dis-

missed this argument as “highly speculative.” Thevis, 665 F.2d at

647.

Remington, [Foreword to student notes on Sandstrom v.

Montana and Beck v. Alabama], 1981 Wis. L. Rev. 513 (1981).

at hand. In Beck, an Alabama statute prohibited the

judge from instructing the jury on lesser included of-

fenses in a capital case. This statutorily imposed all-

or-nothing choice necessarily injected “extraneous fac-

tors,” “diverting the jury’s attention from the central

issue of whether the state has satisfied its burden of

proving beyond a reasonable doubt that the defendant

is guilty,” and thereby introduced an intolerable “level of

uncertainty and unreliability into the fact-finding

Note, Beck v. Alabama: The Right to a Lesser Included

Offense Instruction in Capital Cases, 1981 Wis. L. Rev. 560, 576

(1981) (citing Addington v. Teras, 441 1S. 418, 423 (1979) and

Taylor v. Kentucky, 436 U.S. 478, 490 (1978)). In the same

passage, the author discusses other decisions in which the Court’s

holdings were explicitly tied to its “desire to promote the integrity

of the fact-finding process,” including Chambers v. Mississippi,

410 U.S. 284 (1978) (invalidating operation of state evidentiary

rule when defendant prohibited thereby from presenting crucial

exculpatory testimony); Estelle v. Williams, 425 U.S. 501 (1976)

(defendant cannot be compelled to stand trial in prison garb);

Patterson v. New York, 482 U.S. 197 (1977) (state may not shift

burden of persuasion to defendant); Morissette v. United States,

842 U.S. 246 (1952) (prosecution may not prove its case through

conclusive presumptions) ; Jackson v. Virginia, 443 U.S. 307 (1979)

(claims regarding insufficiency of evidence cognizable on federal

habeas corpus).

“ 447 US. (1980).

* Beck, 447 U.S. at 642-43. The heart of the Court’s reasoning

was that the Alabama procedure was constitutionally defective

because

it interjects irrelevant considerations into the factfinding

process, diverting the jury’s attention from the central issue

of whether the State has satisfied its burden of proving beyond

a reasonable doubt that the defendant is guilty of a capital

crime. Thus, on the one hand, the unavailability of the third

In the present case, the instructions to the jury affected.

their deliberations in directly comparable fashion. The

jury’s understanding of the extraneous consequerices of

its verdict on Count Ten could not help but divert its

attention from the central issue of proof beyond a

reasonable doubt on that charge. Without a conviction

on Count Ten, the irresistible contents of the Underhill

statements could not be accepted; without a conviction

on Count Ten, the jury knew, there would be no punish-

ment for the defendants on any charge.

The jury instructions in this case are thoroughly suf-

fused with the constitutional evils identified by this

Court in Jackson v. Denno and Beck v. Alabama, Given

the burden on trial courts to safeguard fundamental fair-

ness in the face of ever more complex prosecutions under

RICO, a statute which seems, by its very nature, destined

to add complications to every aspect of the trial process,

this Court should grant review of this case in order to

provide the lower courts guidance on the proper manage-

ment of jury deliberations in complex cases through

constitutionally sound instructions.

option of convicting on a lesser included offense may encourage

the jury to convict for an impermissible reason—its belief that

the defendant is guilty of some serious crime and should be

punished. On the other hand the apparently mandatory nature

of the death penalty may encourage it to acquit for an equally

impermissible reason—that, whatever his crime, the defendant

does not deserve death. In any particular case those two ex-

traneous factors may favor the defendant or the prosecution

or they may cancel each other out. But in every case they

introduce a level of uncertainity and unreliability into the fact-

finding process that cannot be tolerated in a capital case.

Id. See generally, Note, Beck v. Alabama: The Right to a Lesser

Included Offense Instruction in Capital Cases, 1981 Wis. L. REV.

560 (1981) (arguing that the rationale of Beck extends as well to

non-capital cases).

III. Whether a District Court Has Authority to Confer

Judicial Use Immunity Upon a Defense Witness Is an

Issue About Which the Circuit Courts Disagree and

Should Be Settled by This Court.

Prior to trial petitioners filed a motion requesting that

the court provide “judicial use immunity” ** for George

Thevis, the father of defendant Michael Thevis. The

testimony of George Thevis was vital to the defense be-

cause it would have provided a first-hand account of the

actual whereabouts of Michael Thevis and Alton Hood

at the time they were allegedly carrying out the mur-

ders of Underhili and Galanti.“ Without George Thevis’

testimony, the defendants’ alibi defense was severely

undercut.

The pre-trial motion for judicial use immunity for

George Thevis was reviewed during trial, in camera and

ex parte, with attorneys for the witness present. The

defense made a proffer of George Thevis’ expected testi-

mony and again advised the court that he would invoke

the fifth amendment privilege if called to testify. The

trial court rejected the defense request, holding “that it

lacked authority to grant immunity to any witness.” ©

On appeal petitioners argued, principally on the au-

thority of Government of the Virgin Islands v. Smith™

and on Supreme Court precedents relied on by the Third

Circuit in that case, that a trial court does have inher-

ert authority, founded upon the due process right to a

4 United States v. Thevis, 665 F.2d at 638.

0 Brief of Global Industries at 22-24.

% United States v. Thevis, 665 F.2d at 638.

51 615 F.2d 964 (3d Cir. 1980).

52 F. g., Chambers v. Mississippi, 410 U.S. 284 (1973); Simmons

v. United States, 390 U.S. 377 (1968) ; Murphy v. Waterfront Com-

mission of New York, 378 U.S. 52 (1964); Brady v. Maryland, 373

U.S. 83 (1963).

fair trial, to confer use immunity upon a witness with

essential exculpatory information.“ They argued further

that the conditions established in Smith for the granting

of judicial use immunity were all met in the present

instance.™

The Fifth Circuit panel, after noting the “widely

divergent opinions” of the circuit courts on the question

of judicially conferred defense witness immunity and the

lack of any Supreme Court decision specifically addressing

the matter, rejected petitioners’ due process argument.“

The panel concluded that “district courts may not grant

immunity to defense witnesses simply because that wit-

ness has essential exculpatory information unavailable

from other sources.“

In so holding, the court firmiy aligned itself with the

Second Circuit’s views in United States v. Turkish." The

Turkish opinion was a specific rejoinder to Smith, setting

forth the bases for the Second Circuit’s “fundamental

disagreement with the standards outlined in that deci-

sion.” ** Turkish considered and rejected arguments for

defense witness immunity based on both the sixth amend-

ment’s Compulsory Process Clause and the fifth amend-

ment’s Due Process Clause. The Thevis appeal concerned

only due process arguments for defense witness im-

munity, but the newly constituted Fifth Circuit has

recently, in United States v. Chagra,” held not only

58 Brief of Global Industries at 16-22.

Id. at 21-28.

55 Thevis, 665 F. ad at 639.

56 Jd.

57 623 F.2d 769 (2d Cir. 1980), cert. denied, 449 U.S. 1077 (1981).

58 Jd. at 777.

5° 665 F.2d at 638 n.23.

™ 669 F.2d 241 (5th Cir. 1982).

that the due process argument is foreclosed in that cir-

cuit by Thevis, but also that the compulsory process

clause cannot provide an a basis for judicially

conferred immunity.

The cases mentioned herein are but the most recent

chapter in the long-standing controversy over the avail-

ability of defense witness immunity.“ The question has

attracted an extraordinary amount of attention from

commentators, almost all of whom have argued that a

right to defense witness immunity inheres in current

Id. at 259-60.

' @ See also, United States v. Horwitz, 622 F.2d 1101 (2d Cir.

1980), remanding United States v. DePalma, 476 F. Supp. 775

(S.D.N.Y. 1979) for reconsideration in light of Turkish; United

States v. Herbst, 641 F.2d 1161 (5th Cir. 1981); United States v.

D’Apice, 664 F.2d 75 (5th Cir. 1981); United States v. Herman,

589 F.2d 1191 (3d Cir. 1978), cert. denied, 441 U.S. 913 (1979);

Grochulski v. Henderson, 637 F.2d 50 (2d Cir. 1980), cert. denied,

450 U.S. 927 (1981); United States v. Davis, 623 F.2d 188 (Ist Cir.

1980) ; United States v. Praetorious, 622 F.2d 1054 (2d Cir. 1980),

cert, denied, 447 U.S. 869 (1980); United States v. Lenz, 61€ F.2d

960 (6th Cir.), cert. denied, 447 U.S. 929 (1980); United States v.

Klauber, 611 F.2d 512 (4th Cir. 1979), cert. denied, 431 United

States 970 (1978) ; United States v. Morrison, 535 F.2d 223 (3d Cir.

1976) ; United States v. Lang, 589 F.2d 92 (2d Cir. 1978) ; United

States v. Wright, 588 F.2d 31 (2d Cir. 1978), cert. denied, 440 U.S.

917 (1979); United States v. Rocco, 587 F.2d 144 (3d Cir. 1978);

United States v. Housand, 550 F.2d 818 (2d Cir. 1977), cert. denied,

431 U.S. 970 (1978); In re Daley, 549 F.2d 469 (7th Cir. 1977);

United States v. Graham, 548 F.2d 1302 (8th Cir. 1977); United

States v. Smith, 542 F.2d 711 (7th Cir. 1976); United States v.

Alessio, 528 F.2d 1079 (9th Cir.), cert. denied, 426 U.S. 948 (1976) ;

United States v. Stofsky, 527 F.2d 237 (2d Cir. 1975), cert. denied,

429 U.S. 819 (1976); Thompson v. Garrison, 516 F.2d 986 (4th

Cir.), cert. denied, 423 U.S. 933 (1975); United States v. Allstate

Mortgage Corp., 507 F.2d 492 (7th Cir. 1974); United States v.

Ramsey, 503 F.2d 524 (7th Cir. 1974), cert. denied, 420 U.S. 932

(1975); Cerda v. United States, 488 F.2d 720 (9th Cir. 1973);

United States v. Jenkins, 470 F.2d 1061 (9th Cir. 1972), cert.

denied, 411 U.S. 920 (1973); Earl v. United States, 361 F.2d 531

(D.C. Cir. 1966), cert. denied, 388 U.S. 921 (1967).

concepts of due process or may be derived from the

Compulsory Process Clause.“ The diversity of views

amongst the circuits creates the potential for serious

anomalies in the administration of justice.

At present, a matter so essential to the truth-finding

process as a defendant’s ability to compel testimony by

witnesses may turn upon which circuit happens to have

jurisdiction of his case. It is easy to imagine opposite

results in factually indistinguishable cases simply be-

cause in one case immunized exculpatory testimony was

admitted, while in the other it was not. The present

case provides this court an ideal opportunity to resolve

the controversy and to provide authoritative guidance as

to whether or when due process requires that use im-

munity be conferred upon a defense witness.

For the foregoing reasons, the writ should issue.

See, e.g., Mikkeltvedt, United States v. Alessio—Due Process

of Law and Federal Grants of Witness Immunity for Defense Wit-

nesses, 31 MerRcEeR L. Rev. 689 (1980), Note, The Due Process

Right to the Immunization of Defense Witnesses, 22 B.C.L. REv.

299 (1981); Westen, The Compulsory Process Clause, 73 Mick. L.

Rev. 71 (1974); Note, Judicial Immunity for Criminal Defense

Witnesses: A Safeguard for the Defendant's Sixth Amendment

Right to Compulsory Process, 16 NEw ENG. L. Rev. 481 (1981),

Note, Defense Witness Immunity: A Growing C.

ernment of Virgin Islands v. Smith, 53 TEMPLE L.Q. 1170 (1980) ;

Note, A Re-Examination of Defense Witness Immunity: A New

Use for Kastigar, 10 Harv. J. Lecis. 74 (1972); Note, Right of the

Criminal Defendant to the Compelled Testimony of Witnesses, 67

Cotum. L. Rev. 953 (1967); Note, Separation of Powers and De-

fense Witness Immunity, 66 Gro. L.J. 51 (1977); Note, “The Public

has a Claim to Every Man's Evidence”: Defendant's Constitutional

Right to Witness Immunity, 30 STAN. L. Rxv. 1211 (1978); Note,

The Sixth Amendment Right to Have Use Immunity Granted to

Defense Witnesses, 91 Harv. L. Rev. 1266 (1978); but see,

Flanagan, Compelled Immunity for Defense Witnesses: Hidden

Costs and Questions, 56 NotrRE DAME Law, 447 (1981) (arguing

that defense witness immunity cannot be justified on the basis of

due process or the Compulsory Process Clause).

CONCLUSION

For all of the above reasons, petitioners request that

the writ of certiorari be granted.

Respectfully submitted,

EDWARD T. M. GARLAND WLan W. TAY or, III

Counsel of Record Ccunsel of Record

STEVEN H. SaDow RONALD R. MASSUMI

GARI AND, NUCKOLLS ZUCKERMAN, SPAEDER, TAYLOR

& Carrs, P.C. & KoLKER

92 Luckie Street, N.W. 1201 Connecticut Ave., N.W.

Atlanta, GA 30303 12th Floor

(404) 577-2225 Washington, DC 20036

Counsel for (202) 775-1440

Global Industries, Inc. Bossy LEE Cook

Cook & PALMOUR

128 South Commerce Street

Summerville, GA 30747

(404) 857-3421

Counsel for Michael G. Thevis

May 10, 1982

XIpuaddly

813208 [Sire

FILED

MAY 10 1962

No.

ALEXANDER L. STEVAS

IN THE a

Supreme Court of the United States

OCTOBER TERM, 1981

MICHAEL G. THEVIS and

GLOBAL INDUSTRIES, INC.,

Petitioners,

UNITFD STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Epwarp T. M. GARLAND WiruiaM W. Tay or, III

Counsel of Record Counsel of Record

STEVEN H. Sapow RONALD R. MASSUMI

GARLAND, NUCKOLLS ZUCKERMAN, SPAEDER, TAYLOR

& Carrs, P.C. & KOLKER

92 Luckie Street, N. W. 1201 Connecticut Ave., N.W.

Atlanta, GA 30303 12th Floor

(404) 577-2225 Washington, DC 20036

Counsel for (202) 775-1440

Global Industries, Inc. Bossy LEE Cook

Cook & PALMOUR

128 South Commerce Street

Summerville, GA 30747

(404) 857-3421

Counsel for Michael G. Thevis

———————————————————— on—nX—X— >

WILSON - Eres PRINTING Co.. Inc. - 789-0096 - WasHINGTON. D.C. 20001

TABLE OF CONTENTS

Page

A. Orders Denying Petitions for Rehearing (March 3,

1982)

B. United States v. Thevis, 665 F.2d 616 (5th Cir.

1982) 7a

C. United States v. Thevis, 84 F. R. D. 57 (N. D. Ga.

1979) 67a

'. APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

OFFICE OF THE CLERK

NORMAN E. ZOLLER Tel. 404-221-6187

Clerk FTS-242-6187

56 Forsyth St. N.W.

Atlanta, Georgia 30303

March 08, 1982

TO ALL PARTIES BELOW:

No. 79-5739

U.S.A.

MICHAEL G. THEVIS, ET AL.

(Dist. Ct. No. CR-78-180-A)

This is to advise that an order has this day been entered

denying the petition(s) for rehearing.

U The Court having been polled at the request of one

of the members of the Court and a majority of the

Circuit Judges who are in regular active service

not having voted in favor of it (Rule 35, Federal

Rules of Appellate Procedure: Circult Rule 26),

the petition() for rehearing en banc has also been

denied.

No member of the panel nor Judge in regular ac-

tive service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure: Eleventh

Circuit Rule 26), the petition(s) for rehearing en

banc has also been denied.

See Rule 41, F.R.A.P., and Eleventh Circuit Rule 27 for

issua”ce and stay of the mandate.

Very truly yours,

NORMAN E. ZOLLER

Clerk

By: /s/ Angela L. Bickers

Deputy Clerk

ec: Mr. Bobby Lee Cook

Mr. William W. Taylor, III

Mr. Edward T. M. Garland

Mr. Steven H. Sadow

Mr. William Ralph Hill, Jr.

Mr. Edward E. Strain, II

Ms. Dorothy Y. Kirkley

Mr. Craig A. Gillen

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT ;

No. 79-5739

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

MICHAEL G. THEVIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Georgia

ON PETITION FOR REHEARING AND

PETITION FOk REHEARING EN BANC

(Opinion January 11, 1982,

5 Cir., 197—, —— F.2d ——)

(Mar. 3, 1982)

Before KRAVITCH and THOMAS A. CLARK, Circuit

Judges; THOMAS, Judge.

* Former Fifth Circuit Case; (Section 9(1) of Public Law 96-

452—October 14, 1980).

** Honorable Daniel H. Thomas, Senior District Judge, sitting

by designation.

PER CURIAM: ’

(Vv) The Petition for Rehearing is DENIED and no

pellate Procedure; Local Fifth Circuit Rule 16) the Pe-

tition for Rehearing En Banc is DENIED.

/s/ (Ilegible) Kravitch

United States Circuit Judge

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT B

No. 79-5739

UNITED STATES OF AMERICA,

Plaintiff-A ppeilee,

GLOBAL INDUSTRIES, INC.,

Defendant-A ppellant.

Appeal from the United States District Court

for the Northern District of Georgia

ON PETITION FOR REHEARING

(Mar. 3, 1982)

Before KRAVITCH and THOMAS A. CLARK, Circuit

Judges; THOMAS, Judge

* Former Fifth Circuit Case; (Section 9(1) of Public Law 96-

452—October 14, 1980).

** Honorable Daniel H. Thomas, Senior District Judge, sitting

by designation.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

/s/ IIllegible] Kravitch

United States Circuit Judge

‘UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT *

UNIT B

No. 79-5739

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

MICHAEL G. THEvISs, ALTON BART Hoop,

GLOBAL INDUSTRIES, INC., ANNA JEANETTE EVANS,

Defendants-Appellants.

Jan. 11, 1982

Appeal from the United States District Court

for the Northern District of Georgia

Before KRAVITCH and THOMAS A. CLARK, Cir-

cuit Judges, and THOMAS **, Senior District Judge.

KRAVITCH, Circuit Judge.

Appellants Michael Thevis and Global Industries, Inc.

[Global] were convicted by a jury of violating the Rack-

eteer Influenced and Corrupt Organizations Act [RICO],

18 U.S.C. § 1962. Thevis and appellants Anna Jeanette

Evans and Alton Bart Hood were convicted of conspiracy

to violate the civil rights of Roger Dean Underhill under

18 U.S.C. §241 by preventing him from testifying at

trial. All appellants claim that the trial court erred in

several evidentiary rulings, chiefly objecting to the trial

* Former Fifth Circuit case, Section 9(1) of Public Law 96-452—

October 14, 1980.

** The Honorable Daniel H. Thomas, Senior District Judge for

the Southern District of Alabama, sitting by designation.

court’s admission of Underhill’s grand jury testimony as

a hearsay exception under Fed.R.Evid. 804(b) (5) and

the trial court’s refusal to grant judicial use immunity

to defense witness George Thevis. Appellants also claim

that the trial court misconstrued RICO and incorrectly

charged the jury; and appellants Thevis, Evans and Hood

under 18 U.S.C. § 241

is not a crime. Finally, appellants Evans and Hood claim

their trials should have been severed, and the evidence

was insufficient to convict them of the conspiracy. For

the reasons stated below, we affirm the convictions of

all defendants.

I. Background

The original indictment in this case, filed on June 10,

1978, named Michael G. Thevis, Global Industries, Inc.,

Fidelity Equipment Leasing Corporation and eight other

individuals as defendants. The central allegation was

that Thevis and the corporations had conducted an inter-

state pornography business through a pattern of rack-

eteering activity. Roger Dean Underhill, a principal wit-

ness before the grand jury, was named as an unindicted

co-conspirator. On October 25, 1979, the grand jury re-

turned a superseding indictment which added a charge

that Thevis, Jeanette Evans and Bart Hood conspired to

murder Underhill in order to prevent his testimony.

Seven of the original defendants were not reindicted and

their cases were dismissed: Only Counts One, Two and

Ten of the indictment are relevant to this appeal. Count

One alleged a substantive RICO violation and Count

Two alleged conspiracy to violate RICO.2 Count Ten,

The court granted Fidelity’s motions for acquittal on all counts,

and also granted motions for acquittal by all defendants as to

Counts Three through Nine. William Ross Mahar, a Thevis associ-

ate who also was named in the superseding indictment, died during

trial, and the charges against him were dropped.

2 Counts One and Two named Thevis, Global, Fidelity, and Mahar

as defendants. Fidelity was the parent corporation to Global, which

in turn was the parent to several of Thevis’ adult entertainment

the charge added by the superseding indictment, alleged

a conspiracy among Thevis, Evans, and Hood to deprive

Underhill of his civil rights in violation of 18 U.S.C.

§ 241. The trial lasted approximately eight weeks and

produced a voluminous record.* Our recitation of the

facts is therefore limited to only those absolutely essen-

tial to this appeal.

In the 1960’s, Michael Thevis organized and controlled

a group of corporations whose principal purpose was the

profitable distribution of adult books and films. Under-

hill met Thevis in the fall of 1967 and became a Thevis

employee. Together, Underhill and Thevis developed a

profitable peep-show machine that was manufactured

and distributed by two Thevis-controlled corporations,

Automatic Enterprises and Cinematics. The government

offered evidence as to five separate acts of racketeering

in the conduct of this peep-show enterprise. These acts

were the murders of two competitors in the adult en-

tertainment business, two separate acts of arson against

competitors, and the murders of Underhill and a by-

stander, Issac Galanti.*

The Hanna Murder

Kenneth “Jap” Hanna owned several adult book stores

in Atlanta. On November 13, 1970, Thevis called Under-

hill at 8:30 a.m. and told him to come to work immedi-

ately. When Underhill arrived, Thevis stated that he had

shot Ken Hanna and left the body in the trunk of

corporations, including Cinematics, and Automatic Enterprises.

Underhill, Clifford Jennings Wilson, and Jeff Lee were named as

unindicted participants in Count One and as unindicted co-

conspirators in Count Two.

*The record on appeal consisted of 118 volumes comprising

nearly 16,000 pages.

* Although the Underhill-Galanti murders were predicate acts

under the RICO counts, the indictinent did not implicate Global in

those murders. Global also was not charged in Count Ten.

8 F

to the Atlanta airport parking lot and

it. Afterwards, Underhill took various steps to dis-

of any incriminating evidence, including burning

3 Sa

replacing several bloody floor boards in the warehouse.

In addition, he bought a welding torch outfit and melted

the gun, the trunk lock, Hanna’s car keys, some Mexican

coins which had been in Hanna’s possession, and a screw-

driver. That night Underhill dumped the melted objects

and the bloody boards in the Chattahoochee River.

During an interview with the FBI in 1977 Underhill

showed agents the spot on the Chattahoochee where he

disposed of the melted objects. A government diver found

a pan containing melted objects. Analysis of the melted

debris revealed two General Motors car keys, some Mexi-

can coins, and a screwdriver on which appeared the

letters “R”, “D”, and the beginning of either a capital

“Ts west or .

The Mayes Murder

Jimmy Mayes was employed by Thevis and Underhill

to build peep shows. Underhill paid Mayes by giving

him a percentage of his stock in the peep-show corpora-

tions. When Thevis took away half of Underhill’s and

Mayes’ shares, Mayes became enraged and threatened

to kill Thevis. In December of 1972, Thevis ordered Un-

derhill to kill Mayes and gave him a gun for that pur-

pose. Underhill had a chance to shoot Mayes one night,

but could not pull the trigger. At Thevis’ instruction,

Underhill then hired Bill Mahar to do the job. Mahar

told Underhill that he was going to kill Mayes by putting

a pipe bomb in his truck. The bomb went off just before

midnight, and literally blew Mayes to pieces.

lla

Thevis was at this time in the hospital due to injuries

sustained in a motorcycle accident. On the day of the

murder, Underhill advised Thevis that the explosion

would take place that night. After the explosion, Under-

hill went to the scene and found a piece of bone and a

gold pin. He showed this evidence to Thevis in the hos-

pital; Thevis said n bone into

a paperweight. The day after the murder, Thevis in-

structed his nephew, Mann Chandler, to give Underhill

money from Thevis’ safe to pay Mahar.

The Louisville Arson

Nat Bailer, a competitor of Cinematics in the peep-

show industry, owned a warehouse in Louisville, Ken-

tucky. Thevis ordered Underhill to go to Louisville and

burn the warehouse. On the weekend of April 27, 1976,

Underhill drove to Louisville and, with two Thevis em-

ployees, Clifford Wilson and Robert Mitchum, set fire

to the warehouse. Returning from Louisville, Under-

hill called Thevis and reported their success. The former

Mrs. Underhill corroborated Underhill’s out of town trip

on April 27, 1970. She also noticed that he was dirty

and smokey when he returned and remembered that he

wanted to get rid of the clothes he was wearing.

The Fayetteville Arson

In 1972, Thevis operated an adult bookstore in Fay-

etteville, North Carolina. Herman Womack owned a

competing bookstore just one block away. Thevis told

Underhill to burn down the competitor. On September

19, 1972, Underhill and Mahar drove to Fayetteville and

accomplished the arson by drilling a hole in the roof of

the building, pouring gasoline down into the interior, and

igniting it with a water pistol used as a flame thrower.

Afterwards Thevis gave Underhill $1,500 with which he

paid Mahar for the successful arson.

12a

The Underhill-Galanti Murders

Under duress from Thevis, Underhill sold his interest

in Cinematics to Thevis in 1971, but remained on Thevis’

payroll (at about $50 per week) until Underhill went to

prison in 1974. In 1975 Underhill filed a civil RICO

suit against Thevis. While Underhill was in prison, the

government sought unsuccessfully to get Underhill's co-

operation in its investigation of Thevis. Underhill was

paroled in January 1977 without having reached any spe-

cific agreement with the government. Following his pa-

role, Underhill was granted immunity and began to co-

operate. He gave lengthy recorded statements to the

FBI in January 1977 and testified before a federal grand

jury in May 1977. In June 1977, Underhill visited

Thevis in the federal prison in Springfield, Missouri.

Underhill wore a shoe mike provided by the FBI and

recorded his conversation with Thevis. During this con-

versation Underhill told Thevis of his interviews with

the FBI and that he had taken and passed a polygraph

examination.

On April 28, 1978, Thevis escaped from the New

Albany, Indiana, jail where he was confined during the

trial of a civil case arising from the Louisville arson.

Soon after his escape, he contacted defendants Evans

and Hood. Jeanette Evans, a real estate agent in Mari-

etta, Georgia, was a close personal friend of Thevis.

Bart Hood, her cousin, was a detective in the Summer-

ville, South Carolina, police department. Evans and Hood

assited Thevis in establishing several aliases, in obtain-

ing an apartment, a VISA credit card, and safe-deposit

boxes.

Hood and Evans requested De: iis Bradley, their mu-

tual cousin, to make silencers for a .38 caliber pistol.

Evans also inquired about a silencer for a 30.06 rifle.

Bradley made two silencers; he mailed one to Hood in

Summerville on October 20, 1978, and Hood picked up

the second silencer late in the afternoon on October 25,

Records indicated that Hood was on sick leave from

October 9-13, October 16-20 and October 23-25. Hood

later told an investigator for credit card companies that

he had been in Atlanta with Clarence Feagin (a Thevis

alias) on October 25, the date of Underhill’s death. On

October 24, 1978, Hood placed a call from the Journey’s

End motel in Atlanta to the South Carolina Highway

Patrol in order to run a license check on the car being

driven by Underhill.

Underhill owned an undeveloped tract of land on

Riverside Drive in Atlanta. It had an unpaved drive-

way, blocked by a gate, which carried visitors quickly

out of sight of the main road. At the time of Underhill’s

death, this property was for sale. On October 24, Evans

went to the office of real estate agent Louis Carter, and

asked to see the Fulton County tax maps. Evans first

looked for a single-family residence on Riverside Drive,

but was unable to locate it because she had the wrong

address. Next, Evans asked about the "Underhill prop-

erty, claiming she had a prospective purchaser. Carter

considered this request odd, because about a year and a

half earlier Carter had contacted Evans about this same

property. Evans at that time warned Carter not to

have anything to do with the Underhill property, explain-

ing that Underhill was dangerous and “involved with

Michael Thevis’ activities.”

On October 21, 1978, Irene Williams, Underhill's

fiancee, joined him at an Atlanta motel. Underhill in-

tended to enter the Federal Witness Protection Program

shortly, but wanted to sell the Riverside Drive property

first. Ms. Williams and Underhill spent two days clean-

ing up the property. On Wednesday, October 25, Under-

hill left Williams at approximately 11:30 a.m. to keep

way of the Underhill property. At 11:35 a.m. on October

25, Mrs. Stumminger heard seven or eight “pops,” looked

out the window, and saw a black car driving slowly up

Riverside Drive. About twenty-five minutes later, a

“hysterical” Irene Williams rang her doorbell.

Police and FBI agents were summoned to the scene.

They found several shotgun shell casings and spent 30.06

shells. Underhill had died from one or more shotgun

blasts. Galanti had been killed by gunshot wounds to

the head and neck. One wound on his neck was at-

tributable to a high-powered rifle, such as a 30.06.

At trial the government presented identification tes-

timony from two eyewitnesses: Rodney Letchworth, who

placed Thevis at the scene of the Underhill-Galanti shoot-

ing, and Milton McMurray, who placed Thevis, Evans,

and Hood together approximately forty-five minutes after

the murders, At approximately 11:30 a.m. on October

25, Letchworth, a retired marine pilot, had driven by the

Underhill property and noticed a man standing near the

gate. He later identified this individual as Thevis. Mc-

Murray, a commercial airline pilot, was a neighbor of

Evans. At 12:10 p.m. on October 25, and again about

15-20 minutes later, McMurray observed Evans and two

men drive past his yard. At trial, he identified the man

in the front seat as Thevis, and the man in the back as

Hood.

Thevis and Evans were arrested on November 9, 1978

in Bloomfield, Connecticut. A search of their persons

15a

and their car yielded firearms, $411,000 in cash, and

over one million dollars worth of jewelry. A search of

a rental locker in South Windsor, Connecticut disclosed

a transcript of interviews the FBI had conducted with

Underhill. Fingerprint analysis revealed over 100 of

Thevis’ fingerprints and palm prints throughout the

transcript and one of Evans’ fingerprints on an inside

page of the transcript.

Immediately after his arrest, Thevis was confined in

a federal prison in Danbury, Connecticut. His cellmate,

Bernard McCarthy, testified that Thevis had confessed to

the murder of Underhill. According to McCarthy, Thevis

told him that he had lured Underhill to his property by

breaking the fence down, where he “assassinated” Under-

hill and his “bodyguard” with a shotgun. Thevis cx-

plained that he killed Underhill because Underhill in-

tended to testify against him, and that Underhill was to

enter the marshal’s protection service the following Mon-

day. Thevis boasted to McCarthy that while a fugitive

he had travelled incognito in the Atlanta area, once re-

csiving a speeding ticket there. Police later determined,

based solely on McCarthy’s information, that Thevis had

received such a ticket using the name C. M. Feagin.

McCarthy was also able to describe the contents of

Thevis’ car at the time Thevis was arrested.

II. Challenges to the Indictr-ent

A. The Interpretation of RICO

Appellants make three separate arguments that the

trial court erred in construing RICO. First, they claim

that the trial court should have struck the Underhill-

Galanti murders from Counts One and Two of the in-

dictment (the RICO charges) because the evidence failed

to show that Thevis was “associated with” the enterprise

at the time of the murders, and because the murders

were not acts through which Thevis conducted the affairs

of the enterprise.

16a

This contention is without merit. As this court noted

in United States v. Elliott, 571 F.2d 880, 898 (5th Cir.),

439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344

(1978), proof of association with a RICO enterprise may

depend wholly on circumstantial evidence. The record

in this case contains such evidence. Although Thevis had

purportedly sold his interest in the pornography business

to his secretary, Laverne Bowden, for $16 million dollars,

the note securing the sale was always in default. Thevis,

therefore, could foreclose at any time and regain his

interest in the business. Rodney Glen Smith, a cellmate

of Thevis in 1977, testified that despite the “sale,”

Thevis stated he still “controlled” his pornography em-

pire; given the terms of the “sale” and the fact Thevis

had contacted Ms. Bowden after his escape from jail in

1978, one could infer that Thevis’ interest in the success

of the pornography enterprise continued until the Under-

hill murder. The murder itself, moreover, neatly ad-

vanced Thevis’ interests in the enterprise. The original

indictment in the case sought forfeiture of all the assets

of Global and Fidelity under RICO forfeiture provi-

sions.“ The Underhill murder was designed to prevent

the government’s key witness from testifying at trial,

thus imperiling the government’s entire RICO case and

preventing both RICO criminal convictions and forfeiture.

The murder, therefore, protected the integrity of the

enterprise. Keeping the enterprise together was inex-

tricably tied to furthering its business; hence the Under-

hill murder was a proper predicate act under § 1962. See

United States v. Welch, 656 F.2d 1039, 1060-62 (5th Cir.

1981) (predicate acts only required to have sufficient

nexus with enterprise to be properly charged under

RICO).

ts’ second argument is that the term “enter-

prise” as used in RICO does not include the specific asso-

ciation charged in this case. The RICO definitions sec-

518 U.S.C. § 1963.

17a

tion, 18 U.S.C. § 1961, states that an enterprise “includes

any individual, partnership, corporation, association, or

other legal entity, and any union or other group of indi-

viduals associated in fact although not a legal entity ....”

Appellants contend that because the indictment described

the enterprise as “a group of individuals associated in

fact with various corporations,” the enterprise alleged

did not fall within the literal bounds of the statutory

classifications. We reject this claim.

This specific question is one of first impression. We

nevertheless are convinced, as was the trial court, United

States v. Thevis, 474 F.Supp. 134, 137 (N.D.Ga.1979),

that RICO covers the enterprise alleged in this case. Use

of the verb “includes” in the statutory definition indi-

cates congressional intent not to limit a RICO enterprise

to the specific categories listed; rather, the language

“reveals that Congress opted for a far broader definition

of the word ‘enterprise’.” United States v. Turkette, ——

U.S. ——, 101 S.Ct. 2524, 2533-34, 69 LEd.2d 246

(1981). See United States v. Elliott, swpra, at 897 (quot-

ing United States v. Hawes, 529 F.2d 472, 479 (5th Cir.

1976) ). Moreover, the House report accompanying RICO

stated that “enterprise” included “associations in fact,

as well as legally recognized associative entities. Thus

infiltration of any associative group by any individual

or group capable of holding a property interest can be

reached.” House Rep.No.91—1549, 91st Cong., 2d Sess.,

reprinted in [1970] U.S.Code Cong. & Ad.News 4007,

4032 (emphasis added). Although the term enterprise“

may have some limits,“ the indictment in this case prop-

erly alleged an “association in fact” within the scope of

§ 1961.

Appellants’ final argument is that RICO was not in-

tended to apply to illegitimate enterprises such as the

association alleged here. The Supreme Court has now

* Cf. United States v. Mandel, 415 F.2d 997 (D.Md. 1976) (State

of Maryland not an “enterprise” ).

18a

decided this issue in United States v. Turkette, —— U.S.

——, 101 S. Ct. 2524, 69 L.Ed.2d 246 (1981), holding that

RICO applies to both illegitimate and legitimate enter-

prises.

B. The Charge Under 18 U.S.C. § 241

Count Ten of the indictment charged Thevis, Evans

and Hood with violating 18 U.S.C. § 241. That section

makes criminal a conspiracy “to injure, oppress, threaten,

or intimidate any citizen in the free exercise or enjoy-

ment f any right or privilege secured to him by the

Constitution or laws of the United States The

government alleged that Thevis, Evans and Hood had

conspired to injure Underhill in the exercise of his right

to testify at trial. Appellants urge that this charge failed

to state a crime because the right to testify is not one

secured by the Constitution or laws of the United States.

To support this contention, appellants cite United States

v. Sanges, 48 F. 78 (5th Cir. 1891), which specifically

held that the right to testify was not one secured by the

Constitution or laws of the United States. Although ordi-

narily a panel must adhere to prior decisions of this

Court, our first duty is to follow the dictates of the

United States Supreme Court. We therefore must con-

sider whether the Supreme Court’s decision in In Re

Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080

(1894), overruled Sanges sub silentio.

Quarles involved a conspiracy charge under the prede-

cessor statute to § 241. The victim of the conspiracy was

assaulted for reporting a violation of the federal tax laws

to a deputy United States Marshal for the Northern

District of Georgia. The Court held that the right to

report a crime, although not specifically guaranteed by

the Constitution, nonetheless “arose out of the creation

and estabiishment by the Constitution itself of a national

government, paramount and supreme within its sphere

of action.” 158 U.S. at 535-36, 15 S.Ct. at 961. The Court

concluded, “It is the duty and right.. . of every citizen,

19a

to assist in prosecuting, and in securing the punishment

of any breach of the peace of the United States.” Id. at

535, 15 S.Ct. at 960-961 (emphasis added).

Thus while Quarles did not specifically address the

right to testify, the language and reasoning encompass

such a right. Testifying at trial both “assists the prose-

cution” and “secures the punishment” of a crime. More-

over, as the Second Circuit noted in United States v.

Pacelli, 491 F.2d 1108, 1113 (2d Cir.), cert. denied, 419

U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 49 (1974) (holding

that the right to testify is one guaranteed by federal

law) :

Our federal government has a particular interest in

assuring a prospective witness that he or she will be

free to respond by attending the trial of a federal

indictment as a witness without being prevented from

doing so by threats, molestation or force. Otherwise,

the foundations of federal justice would be under-

mined.

See United States v. Smith, 623 F.2d 627 (9th Cir. 1980) ;

United States v. Guillette, 547 F.2d 743 (2d Cir. 1976),

cert. denied, 434 U.S. 839, 98 S.Ct. 182, 54 L.Ed.2d 102

(1977). See generally, Kimble v. D.J. McDuffy, Inc., 648

F.2d 340 (5th Cir. 1981) (en banc) (interpreting 42

U.S.C. § 1985 (2) as providing a cause of action for

racial- or class-based interference with testifying at

trial). We conclude, therefore, that Quarles implicitly

overruled Sanges, and the Supreme Court’s reasoning con-

trols this case. Thus we hold that the right to testify at

trial is one secured by the Constitution, and that the

conspiracy charged in the indictment properly stated a

federal crime.

III. The Evidentiary Rulings

A. Admission of Underhill’s Grand Jury Testimony

Having determined that the charges in the indictment

were proper, we proceed to consider appellants’ various

evidentiary claims. One of their major contentions is

that the trial court erroneously admitted certain tran-

scripts of Underhill’s grand jury testimony and FBI in-

terviews as substantive evidence of guilt on the RICO

charges.

The government’s principal witness in the RICO case

against Thevis and Global was to be Thevis’ former

business associate, Roger Dean Underhill. Following Un-

derhill’s murder, the government notified the court and

the defendants that pursuant to Fed. R. Evid. 804 (b) (5) ,”

it intended to offer portions of Underhill’s grand jury

and interviews with the FBI as substantive

evidence of Thevis’ guilt under Counts One and Two. The

court permitted the government to offer its evidence as

to Count Ten first, in order to establish that Thevis was

responsible for Underhill’s death and provide a basis for

the court to rule on the 804(b) (5) issue. The court then

admitted specific portions of Underhill’s testimony as con-

7 Rule 804(b) deals with exceptions to the hearsay rule for state-

ments made by a declarant who is now unavailable for trial. The

exceptions include former testimony, 804(b) (1); dying declarations,

804(b) (2); statements against interest, 804 (b) (3); and statements

of personal or family history, 804 (b) (4). Subsection (b)(5) is the

residual exception for the situation in which the declarant is un-

available. This subsection reads as follows:

(5) Other exceptions.—A statement not specifically covered by

any of the foregoing exceptions but having equivalent circum-

stantial guarantees of trustworthiness, if the court deter-

mines that (A) the statement is offered as evidence of a ma-

terial fact; (B) the statement is more probative on the point

for which it is offered than any other evidence which the pro-

ponent can procure through reasonable efforts; and (C) the

general purposes of these rules and the interests of justice will

best be served by admission of the statement into evidence.

However, a statement may not be admitted under this excep-

tion unless the proponent of it makes known to the adverse

party sufficiently in advance of the trial or hearing to provide

the adverse party with a fair opportunity to prepare to meet

it, his intention to offer the statement and the particulars of it,

including the name and address of the declarant.

taining sufficient “circumstantial guarantees of trust-

worthiness” as required under Fed.R.Evid. 804 (b) (5).

The court also held that although admitting the evidence

under Rule 804(b) (5) would have violated Thevis’ con-

frontation rights under the sixth amendment, the gov-

ernment had established by “clear and convincing” evi-

dence that Thevis had caused Underhill’s death; hence,

Thevis had waived his confrontation rights. United

States v. Thevis, 84 F.R.D. 57 (N.D.Ga.1979).

In contending that the trial court erred in admitting

the Underhill evidence, appellants make three arguments.

First, appellants claim that the evidence did not have

the “circumstantial guarantees of trustworthiness” re-

quired to meet Rule 804 (b) (5). Appellants also contend

that the trial court erred in applying the “clear and con-

vincing” standard to the proof of Thevis’ waiver, arguing

that the “beyond a reasonable doubt” standard should

apply. Finally, appellants argue that even if Thevis

waived his confrontation rights, Underhill’s statements

were so untrustworthy that their admission violated due

process.

The issue of admissibility of a witness’ hearsay state-

ments in the face of a defendant-caused absence of that

witness from trial is a question of first impression in

this circuit, although other circuits have faced this prob-

lem under slightly different circumstances. In United

States v. Balano, 618 F.2d 624 (10th Cir. 1979), cert.

denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47

(1980), the Tenth Circuit confronted a situation in which

the defendant had coerced the witness into silence by

threatening the witness’ life. The court held that the de-

fendant had waived his confrontation rights and without

further explanation stated that such a waiver was a

fortiori a waiver of any hearsay objection. In United

States v. West, 574 F.2d 1131 (4th Cir. 1978), a key gov-

ernment witness had been murdered prior to trial, but

that murder had not been connected to the defendants.

Nevertheless, the Fourth Circuit found that the witness’

grand jury testimony met the reliability standards of

22a

Rule 804(b) (5) and was sufficiently trustworthy that

its admission did not violate the confrontation clause.

Finally, United States v. Carlson, 547 F.2d 1846 (8th

Cir. 1976), cert. denied, 481 U.S. 914, 97 S.Ct. 2174, 53

L.Ed.2d 224 (1977), the case the trial court primarily

relied on here, involved facts similar to those in Balano.

After determining that the witness’ grand jury testi-

mony met the standards of Rule 804(b) (5), the Eighth

Circuit held that, even assuming admitting the evidence

would violate the confrontation clause, the defendant had

waived his confrontation rights by intimidating the wit-

ness into silence.

We reject both the West and Carlson approaches to

this issue, based upon our reading of Rule 804(b) (5) and

relevant Supreme Court precedent. As to Carlson, we

are convinced that Rule 804(b) (5) does not require find-

ing a confrontation clause waiver once a court has con-

cluded that the proffered evidence has met the reliability

standards of the Rule. Both the wording of the Rule

and the legislative history indicate that Congress in-

See note 7, supra.

The Senate Report stated:

The proposed Rules of Evidence submitted to Congress contained

identical provisions in rules 803 and 804 (which set forth the various

hearsay exceptions), admitting any hearsay statement not spe-

cifically covered by any of the stated exceptions, if the hearsay

statement was found to have “comparable circumstantial guarantees

of trustworthiness.” The House deleted these provisions (proposed

rules 803(24) and 804(b)(6)[(5)]) as injecting “too much un-

certainty” into the law of evidence and impairing the ability of

practitioners to prepare for trial. The House felt that rule 102,

which directs the courts to construe the Rules of Evidence so as to

promote growth and development, would permit sufficient flexibility

to admit hearsay evidence in appropriate cases under various fac-

tual situations that might arise.

We disagree with the total rejection of a residual hearsay excep-

tion. While we view rule 102 as being intended to provide for a

broader construction and interpretation of these rules, we feel

that, without a separate residual provision, the specifically enumer-

tended evidence to be admitted under 804(b) (5) only if

the reliability of the evidence equals or exceeds that of

the other exceptions in Rule 804 (b). The Supreme Court

ated exceptions could become tortured beyond any reasonable cir-

cumstances which they were intended to include (even if broadly

construed). Moreover, these exceptions, while they reflect the most

typical and well recognized exceptions to the hearsay rule, may

not encompass every situation in which the reliability and appro-

priateness of a particular piece of hearsay evidence make clear

that it should be heard and considered by the trier of fact.

The committee believes that there are certain exceptional cir-

cumstances where evidence which is found by a court to have

guarantees of trustworthiness equivalent to or exceeding the

guarantees reflected by the presently listed exceptions, and to have

a high degree of prolativeness and necessity could properly be ad-

missible.

The case of Dallas County v. Commercial Union Assoc. Co., Ltd.,

286 F.2d 388 (5th Cir. 1961) illustrates the point. The issue in that

case was whether the tower of the county courthouse collapsed be-

cause it was struck by lightning (covered by insurance) or because

of structural weakness and deterioration of the structure (not cov-

ered). Investigation t the structure revealed the presence of char-

coal and charred timbers. In order to show that lightning may

not have been the cause of the charring, the insurer offered a copy

of a local newspaper published over 50 years earlier containing an

unsigned article describing a fire in the courthouse while it was

under construction. The Court found that the newspaper did not

qualify for admission as a business record or an ancient document

and did not fit any other recognized hearsay exception. The court

concluded, however, that the article was trustworthy because it was

inconceivable that a newspaper reporter in a small town would

report a fire in the courthouse if none had occurred. See also

United States v. Barbati, 284 F.Supp. 409 (E.D.N.Y. 1968).

Because exceptional cases like the Dallas County case may arise

in the future, the committee has decided to reinstate a residual

exception for rules 803 and 804(b).

The committee, however, also agrees with those supporters of

the House version who felt that an overly broad residual hearsay

exception could emasculate the hearsay rule and the recognized

exceptions or vitiate the rationale behind codification of the rules.

Therefore, the committee has adopted a residual exception for

rules 803 and 804 (b) of much narrower scope and applicability

24a

has held that as to two of the other exceptions, dying

declarations and prior testimony where cross-examination

has already occurred, the reliability of the admitted evi-

dence satisfies the confrontation clause. See Ohio v.

Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2540-41, 65 L.Ed.2d

597 (1980) (prior testimony) ; Mattox v. United States,

156 U.S. 237, 243-44, 15 S.Ct. 337, 340, 39 L.Ed. 409

(1895) (dying declarations). See also, Pointer v. Texas,

380 U.S. 400, 407, 85 S.Ct. 1065, 1069-70, 13 L.Ed.2d 923

(1965) (citing Mattox for the proposition that the Court

has recognized tue admissibility of dying declarations de-

spite lack of confrontation). Hence we find that imposing

on 804 (b) (5) admissibility the additional condition of a

waiver of confrontation rights is contrary to the express

than the Supreme Court version. In order to qualify for admission,

a hearsay statement not falling within one of the recognized ex-

ceptions would have to satisfy at least four conditions. First, it

must have “equivalent circumstantial guarantees of trustworthi-

ness.” Second, it must be offered as evidence of a material fact.

Third, the court must determine that the statement “is more pro-

bative on the point for which it is offered than any other evidence

which the proponent can procure through reasonable efforts.” This

requirement is intended to insure that only statements which have

high probative value and necessity may qualify for admission under

the residual exceptions. Fourth, the court must determine that

“the general purposes of these rules and the interests of justice will

best be served by admission of the statement into evidence.”

It is intended that the residual hearsay exceptions will be used

very rarely, and only in exceptional circumstances. The committee

does not intend to establish a broad license for trial judges to ad-

mit hearsay statements that do not fall within one of the other

exceptions contained in rules 803 and 804(b). The residual excep-

tions are not meant to authorize major judicial revisions of the

hearsay rule, including its present exceptions. Such major revisions

are best accomplished by legislative action. It is intended that in

any case in which evidence is sought to be admitted under these

subsections, the trial judge will exercise no less care, reflection

and caution than the courts did under the common law in establish-

ing the now- recognized exceptions to the hearsay rule. S. Rep. No.

93-1277, 93d Cong., 2d Sess., reprinted in [1974] U.S. Code Cong. &

Ad.News 7051, 7065-66.

25a

wording of the Rule, congressional intent, and Supreme

Court precedent.”

A more fundamental disagreement with both West and

Carlson is the conclusion in those cases that corroborated

grand jury testimony in fact meets the reliability stand-

ards of Rule 804(b) (5). The Senate Judiciary Commit-

tee’s report on the Federal Rules of Evidence stated that

the 804(b) (5) residual exception was to be used only

rarely, in truly exceptional eireumstances. Corroborated

grand jury testimony which for one reason or another is

unavailable at trial is neither rare nor exceptional, and

in our opinion its general admission under this theory

would constitute a “major revision” of the hearsay rule

that, as the Senate Judiciary Committee admonished, is

for the legislature, not the judiciary. Grand jury testi-

mony, although given under oath, is not subjected to the

vigorous truth testing of cross-examination, as is prior

testimony. Grand jury testimony, moreover, is often given

under a grant of immunity which might encourage a wit-

ness to “embellish” his story. We need not determine

whether grand jury testimony ever meets the stringent

reliability standards of Rule 804 (b) (5), however, be-

10 See United States v. Ward, 552 F.2d 1080 (5th Cir.), cert.

denied, 484 U.S. 850, 98 S.Ct. 161, 54 L.Ed.2d 119 (1977) (admit-

ting in a criminal trial evidence which met the standards of Rule

804(b)(5) without finding a waiver of confrontation rights).

11 See note 9, supra.

12 F. g., compare United States v. Gonzalez, 559 F.2d 1271 (5th

Cir. 1977) (grand jury testimony not admissible under facts of

case) with United States v. Ward, 552 F.2d 1080 (5th Cir.), cert.

denied, 434 U.S. 850, 98 S.Ct. 161, 54 L.Ed.2d 119 (1977) (hearsay

statements of truck driver to FBI agent admissible where FBI

agent had confirmed all the details of the statement and “nothing

was uncovered to refute his version of the events”). See also the

dissent of Justices Stewart and Marshall from the denial of certi-

orari in United States v. Garner, 574 F.2d 1141 (4th Cir.), cert.

denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978) which

that grand jury testimony may not meet the re-

cause we conclude other grounds support the admission

of the Underhill statements. Thus while we agree with

the trial court’s application of the “clear and convincing”

standard to the admissibility question, we find the evi-

dence admissible on a different basis than did the trial

court: adopting the Tenth Circuit’s approach in Balano,

we hold that Thevis’ waiver of his right to confrontation

in these circumstances also constituted a waiver of any

hearsay objection.

1. The Constitutional Waiver

The sixth amendment to the Constitution provides in

part that “in all criminal prosecutions, the accused shall

enjoy the right. . . to be confronted with the witnesses

against him... All parties to this appeal agree that

this right may be waived in a proper case. Brookhart v.

Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966).

Whether a waiver existed in this case requires analyzing

two separate questions: whether a defendant’s murder of

a witness for the purpose of preventing his testifying

at trial constitutes a valid waiver, and what standard of

proof the government must bear in proving that waiver.

A waiver of a constitutional right is ordinarliy valid

only if there is “an intentional relinquishment of a known

right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464,

58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A variety of

actions by the accused constitute an express waiver of the

right to confrontation. Boykin v. Alabama, 395 U.S. 238,

89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (guilty plea);

United States v. Stephens, 609 F.2d 230 (5th Cir. 1980)

(stipulations to evidence). The accused, however, may

also waive his confrontation rights indirectly, such as by

absenting himself from trial, Taylor v. United States, 414

U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), or engag-

ing in contumacious conduct which requires his removal

from the courtroom. Illinois v. Allen, 397 U.S. 337, 90

S. Ct. 1057, 25 L.Ed.2d 353 (1970).

27a

We conclude that a defendant who causes a witness

to be unavailable for trial for the purpose of preventing

that witness from testifying also waives his right to

confrontation under the Zerbst standard. A defendant

who undertakes this conduct realizes that the witness is

no longer available and cannot be cross-examined. Hence

in such a situation the defendant has intelligently and

knowingly waived his confrontation rights.

The policy interests underlying the confrontation

clause, moreover, mandate this result. We recognize that

the right of confrontation is so fundamental to our con-

cept of a fair trial that it is a privilege specifically

guaranteed by the Constitution. Nevertheless, both Tay-

lor and Allen indicate that the right is not absolute, and

must give way at times to stronger state interests. Simi-

larly, when confrontation becomes impossible due to the

actions of the very person who would assert the right,

logic dictates that the right has been waived. The law

simply cannot countenance a defendant deriving benefits

from murdering the chief witness against him. To per-

mit such subversion of a criminal prosecution “would be

contrary to public policy, common sense, and the under-

lying purpose of the confrontation clause,” United States

v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976), cert.

denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224

(1977), and make a mockery of the system of justice

that the right was designed to protect.

The question of the proper burden of proof to apply

to the waiver question presents a more difficult issue.

Appellants claim that the “reasonable doubt” standard

should apply, relying in part on the Supreme Court de-

cision In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25

L.Ed.2d 368 (1970) .“ As the Court later noted in Lego

. In Winship, a juvenile was adjudged delinquent on the basis

of a preponderance of the evidence that he had committed an act

which would constitute a crime if he were an adult. The Supreme

Court held that such adjudication must be based on the “reason-

able doubt” standard.

v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618

(1972), however, Winship “was not concerned with the

standards for determining the admissibility of evidence” ;

rather, Winship merely affirmed the necessity for the

prosecution, in order to secure a conviction, to prove every

essential element of the offense beyond a reasonable doubt.

Here the trial court’s decision to admit Underhill’s state-

ments was purely an evidentiary ruling, not a decision

on Thevis’ substantive guilt. Hence we reject appellants’

“reasonable doubt” standard on the basis of the Supreme

Court’s analysis in Lego.

Because of the intimate association between the right

to confrontation and the accuracy of the fact-finding proc-

ess, however, we also reject the government’s suggestion

that the “preponderance” standard accepted by the Su-

preme Court in Lego (to judge the voluntariness of a

confession) and United States v. Matlock, 415 U.S. 164,

94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (to judge whether

a warrantless search was consensual) is also adequate to

protect confrontation rights.

The Supreme Court repeatedly has noted the impor-

tance of confrontation rights in testing the reliability of

evidence. Indeed, the Court in its most recent confronta-

tion clause case declared that the role of confrontation

in testing accuracy is so important “that the absence of

confrontation at trial calls into question the ultimate in-

tegrity of the fact-finding provess.” Ohio v. Roberts, 448

U.S. 56, 64, 100 S.Ct. 2531, 2528, 65 L.Ed.2d 579 (1980)

(quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93

S. Ct. 1038, 1046, 35 L.Ed.2d 297 (1973) and Berger v.

California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21

L.Ed.2d 508 (1969)). The Court, moreover, has stated

that “a primary interest secured by [the confrontation

clause] is the right to cross-examination,” Ohio v. Rob-

erts, supra at 63, 100 S.Ct. at 2537 (quoting Douglas v.

Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.

2d 934 (1965)), which has been described as “the great-

29a

est legal engine ever invented for the discovery of truth.”

J. Wigmore, Evidence § 1367 (3d ed. 1940). As we have

previously noted:

[Tjhe right of cross-examination is more than a

desirable rule of trial procedure. It is implicit in the

constitutional right of confrontation, and helps as-

sure the “accuracy of the truth-determining process.”

It is, indeed, “an essential and fundamental require-

ment for the kind of fair trial which is this coun-

try’s constitutional goal.”

Smith v. Estelle, 569 F.2d 944, 946 (5th Cir. 1978)

(quoting Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct.

1038, 85 L.Ed.2d 297 (1973) (citations omitted) ).

Where reliability of evidence is a primary concern, the

Supreme Couri has conditioned admissibility on the “clear

and convincing” standard. The prosecution, for example,

must prove by clear and convincing evidence that an in-

court identification that follows a tainted identification

has a reliable independent basis before the identification

can be admitted into evidence. United States v. Wade,

388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149

(1967) ; Cannon v. Alabama, 558 F.2d 1211, 1218 (5th

Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55

L.Ed.2d 792 (1978). In contrast, judicial determinations

of the admissibility of evidence under the exclusionary

rule normally do not relate to the reliability of the evi-

dence, but instead are aimed at deterring police miscon-

duct. Stone v. Powell, 428 U.S. 465, 486-87, 96 S.Ct.

3037, 3048-45, 49 L.Ed.2d 1067 (1976) ; United States v.

Brookins, 614 F.2d 1087, 1046-47 (5th Cir. 1980). See

Lego v. Twomey, 404 U.S. 477, 484-85 & nn. 12 & 13, 92

S.Ct. 619, 624-25 & nn. 12 & 13, 30 L.Ed.2d 618 (1976)

(purpose of voluntariness hearing is not to decide relia-

bility of confession). Thus because confrontation rights

In Brookins this court noted that reliability of evidence played

a secondary role in fifth and sixth amendment suppression hear-

are so integral to the accuracy of the fact-finding process

and the search for truth, in contrast to the exclusionary .

rule, we conclude that the trial court was correct in re-

quiring clear and convincing evidence of a waiver of this

right.

2. Waiver of the Hearsay Objection

In United States v. Balano, 618 F.2d 624 (10th Cir.),

cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47

(1980), the Tenth Cireuit faced a situation in which the

defendant had coerced the witness into silence. The court

stated that waiver of one’s right to confrontation was a

fortiori a waiver of one’s right to raise a hearsay objec-

tion. Id. at 626. We agree, basing our decision on an

analysis of the interests served by both the confrontation

clause and hearsay rule.

Although the Supreme Court explicitly has held that the

confrontation clause and the hearsay rule are not co-

terminous, California v. Green, 399 U.S. 149, 155-56, 90

S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1976), the Court

recently has stated that it is a “truism” that both pro-

visions protect the same values. Ohio v. Roberts, 448 U.S.

56, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). Both

the conf.ontation clause and the hearsay rule seek to

balance the need for relevant, probative evidence against

the defendant’s interest in testing the accuracy of evi-

dence through personal confrontation and cross-examina-

tion.“ See id. Cf. Fed.R.Evid. Advisory Committee’s

ings. Nevertheless, once a confession, for example, is found vol-

untary” and admitted, the defendant may still cross-examine various

witnesses concerning the credib.lity of that confession at trial.

In contrast, the loss of confrontation rights precludes cross-

examination, although we note that in this case the defendants did

introduce evidence to impeach Underhill.

146 Of course, an incidental] interest served by the hearsay rule

to the extent it excludes unreliable evidence is the integrity of the

fact-finding process. Nevertheless, this interest is counterbalanced

3la

Note on the Hearsay Problem, quoted in 4 J. Weinstein,

Evidence 800-02 to 800-03 (1979). As noted by the Su-

preme Court in Mattox v. United States, 156 U.S. 237,

242-43, 15 S.Ct. 337, 339, 39 L.Ed.2d 409 (1895), the

confrontation clause envisions:

“a personal examination and cross-examination of the

witness, in which the accused has an opportunity, not

only of testing the recollection and sifting the con-

science of the witness, but of compelling him to stand

face to face with the jury in order that they may

look at him, and judge by his demeanor upon the

stand and the manner in which he gives his testi-

mony whether he is worthy of belief.

Similarly, the hearsay rule envisions testimonial evidence

given under the ideal conditions of a witness under oath,

in the personal presence of the trier of fact, and subject

to cross-examination. Advisory Committee Note, supra

at 800-02. The reason that the hearsay rule and con-

frontation clause are not coterminous is not because the

two provisions protect different interests, but because the

two may balance the relevant interests differently. Thus

a particular hearsay rule may admit evidence which of-

fends confrontation rights because the rule favors the

need for evidence and its probable reliability over the de-

fendant’s confrontational rights. Conversely, a particu-

lar hearsay rule may restrict evidence which nevertheless

satisfies the confrontation clause because the rule favors

increased protection for the defendant. California v.

Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d

489 (1970). See Barber v. Page, 390 U.S. 719, 88 S.Ct.

1318, 20 L.Ed.2d 255 (1968).** In either case, however,

by a concern that in the adversary process each side must develop

his own case. If integrity of the judicial process were the over-

riding concern with hearsay, we would not permit one to waive the

hearsay objection at trial by failing to raise it.

16 In Barber the prosecution introduced at trial in Oklahoma state

court a transcript of the testimony of a witness given at a pre-

the key interest offsetting the need for evidence is the

defendant’s interest in confrontation; if this interest is

removed by a waiver of confrontation rights, the balance

must necessarily fall in favor of the need for evidence.

We hold, therefore, that under the circumstances of this

case, Thevis’ waiver of his confrontation rights also acted

as a waiver of the right to raise a hearsay objection once

the prosecution demonstrated a need for the evidence.“

liminary hearing. The defendant was represented by counsel at the

hearing, but counsel did not cross-examine the witness. At the time

of trial, the witness was incarcerated in a Texas federal prison and

the trial court concluded that his absence from the jurisdiction

made the witness “unavailable” under an Oklahoma hearsay rule

exception; the court then admitted the transcript. The Supreme

Court reversed, holding that admitting the transcript violated the

defendant's confrontation rights because the witness was not truly

“unavailable.”

We have not found a case dealing with the situation in which a

hearsay rule offers a criminal defendant greater protection than

the confrontation clause. This is not unusual in light of the fact

that a criminal defendant who losés at trial would not assert as

grounds for appeal that the hearsay rule should have offered him

less protection.

17 We wish to emphasize that our resolution of the admissibility

of Underhill’s grand jury testimony does not permit wholesale ad-

mission of hearsay evidence when a witness is unavailable. Under

the approach we adopt, a hearsay statement of a potential witness

is admissible only if the government shows, by clear and convincing

evidence, that (1) the defendant caused the witness’ unavailability

(2) for the purpose of preventing that witness from testifying at

trial. Thus hearsay evidence would not be admissible simply be-

cause the witness was missing. Moreover, even if the government

proved by clear and convincing evidence that the defendant had

caused the witness’ absence, the hearsay evidence would still not be

admissible until the government proved the second part of the test,

ie, that the defendant-caused absence was for the purpose of

preventing the witness from testifying. In addition, the “clear

and convicing” standard of proof dictates that close cases must be

resolved in favor of the defendant. Here, however, the trial court

specifically found clear and convincing evidence showing that to pre-

vent Underhill from testifying at trial “Thevis and others including

defendants Evans and Hood conspired to murder Underhill, and on

33a

8. The Due Process Objection

We also reject appellants’ contention that admitting the

Underhill testimony, even if otherwise proper, violated

due process by permitting a conviction based on un-

reliable evidence. While a case may exist in which the

evidentiary base is so totally lacking in reliability that a

conviction would violate due process, California v. G een,

399 U.S. 149, 163 n.15, 90 S.Ct. 1930, 1938 n.15, 26

L.Ed2d 489 (1970), this is not such a case. Other evi-

dence sufficiently corroborated Underhill’s testimony that

the trial court concluded that the statements met the

stringent reliability standards of Fed.R.Evid. 804(b)

(5). While we do not decide if the trial court correctly

ruled on the 804(b) (5) issue, we find that the corrobora-

tive evidence indicated that Underhill's statements were

not “totally lacking” in reliability, and that a conviction

based upon this evidence did not violate appellants’ due

process rights.

B. Claims Under Rule 403

Appellants raise several points which relate to trial

court rulings under Fed.R.Evid. 403. Because all these

October 25, 1978, the objective of the conspiracy was successfully

attained.” United States v. Thevis, 84 F. R. D. 57, 73 (N. D. Ga. 1977).

Even when the government meets this two-part test, the trial

court should scrutinize the proffered statements to ensure that the

evidence is not unreliable. If the evidence appears unreliable, its

probative value may well be outweighed by the unfair prejudice

resulting from unreliability and should be excluded under rule 403.

Moreover, admission of totally unreliable evidence may raise due

process objections. See discussion infra. We note that in this case,

however, sufficient indicia of reliability existed to avoid rule 403

or due process problems. See Part III A 3 of this opinion, infra,

and the summary of corroborative evidence in United States v.

Thevis, supra, at 66-68.

18 This corroborative evidence is explained in detail in the trial

court’s opinion dealing with the admission of the Underhill state-

ments. United States v. Thevis, 84 F.R.D. 57, 66-68 (N.D.Ga.

1979).

34a

points involve the same legal principles and standard of

review, we will discuss them together.

1. The Standard of Review

Under Fed.R.Evid. 403, a trial judge may exclude rele-

vant evidence if he finds that the probative value of the

evidence is substantially outweighed by the danger of un-

fair prejudice to the defendant from admitting the evi-

dence. Nevertheless, because it permits a trial court to

exclude concededly probative evidence, Rule 403 is an ex-

traordinary remedy which should be used sparingly. As

this court noted in United States v. McRae, 593 F.2d 700

(5th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 128, 62

L.Ed2d 83 (1979):

Relevant evidence is inherently prejudicial; but it is

only unfair prejudice substantially outweighing pro-

bative. value, which permits exclusion of relevant

matter under Rule 403. Unless trials are to be con-

ducted on scenarios, on unreal facts tailored and

sanitized for the occasion, the application of Rule 403

must be cautious and sparing. Its major function is

limited to excluding matter of scant or cumulative

probative force, dragged in by the heels for the sake

of its prejudicial effect. As to such, Rule 403 is

meant to relax the iron rule of relevance, to permit

the trial judge to preserve the fairness of the pro-

ceedings by exclusion despite its relevance.

593 F.2d at 707 (emphasis original). In making this

decision, the trial court has broad discretion which is re-

viewable only for abuse. Ramos v. Liberty Mutual Ins.

Co., 615 F.2d 334, 340 (5th Cir. 1980), cert. denied,

Rucker Company v. Shell Oil Company, 449 U.S. 1112,

101 S.Ct. 921, 66 L.Ed.2d 840 (1981) ; United States v.

McRae, supra; Rozier v. Ford Motor Co., 573 F.2d 1332,

1347 (5th Cir. 1978). With this standard as background,

we proceed to assess appellants’ numerous claims of error.

2. Exhibit 47

As part of its proof of Count Ten the government in-

troduced a transcript of interviews of Underhill taken

35a

by FBI agents in January 1977, shortly after Underhill

received immunity and agreed to cooperate with the gov-

ernment in its investigation of Thevis. In these inter-

views, Underhill accused Thevis of plotting several mur-

ders and committing numerous assaults, bombings, ex-

tortions and arsons. In addition to accusations of specific

crimes, Underhill repeatedly speculated that Thevis had

Mafia connections and had tried or would try to have him

killed.

In June 1978, the grand jury returned its first RICO

indictment against Thevis. As part of pre-trial discovery

for the corporate defendants, and in preparation for a

deposition of Underhill, the government provided to de-

fense counsel a 363-page copy of Underhill’s tape-recorded

FBI interviews. After Thevis was arrested in November

1978 in Connecticut, a search of a nearby rental locker

revealed a copy of the Underhill interview. Thevis’ finger-

prints appeared on pages throughout the transcript, and

one of Evans’ fingerprints was found on an inside page.

At trial the government sought to introduce a copy of the

Underhill transcript, exhibit 47, as evidence that Thevis

knew Underhill was cooperating with the government and

therefore had a motive to kill Underhill to prevent him

from testifying. Defense counsel objected to the admis-

sion of exhibit 47 on the basis of Rule 403. The defense,

moreover, offered to stipulate that Thevis knew Underhill

was cooperating with the government, thereby rendering

admission of exhibit 47 unnecessary. The court rejected

defendants’ offer to stipulate and ruled that the exhibit

was admissible to show Thevis’ knowledge and motive. In

order to avoid the risk that the jury would misuse the

evidence, the court gave limiting instructions, both at the

time of admission and in the final instructions, that the

jury could not consider the exhibit for the truth of its

contents; rather, it could only consider the exhibit as it

bore upon the motives of those who had knowledge of its

contents.

and “bad acts” in the interviews were so damning that

no jury could have ignored them. Moreover, they contend

that their admission was unnecessary in view of the de-

fense offer to stipulate to Thevis’ knowledge that Under-

hill was a government witness. While appellants concede

that exhibit 47 was probative as to Thevis’ knowledge,

they vigorously contend that the nature of the statements

in the transcript unfairly prejudiced the jury against

Thevis, and that this prejudice substantially outweighed

any probative value.

We disagree. Count Ten alleged that Thevis had con-

spired to murder Underhill in order to prevent his testify-

ing in the upcoming trial. Government exhibit 47 was

highly probative in establishing that Thevis had a motive

to kill Underhill. The transcript did more than merely

indicate that Underhill was cooperating, perhaps grudg-

ingly, with the government in the Thevis investigation;

the sweeping nature of the accusations demonstrated that

Underhill was willing to “tell all“ to the government. Al-

though the potential for unfair prejudice certainly existed,

the probative value of the exhibit was at least equally

strong.

Nor do we find that the defense offer to stipulate to

Thevis’ knowledge of Underhill’s cooperation with the gov-

ernment obviated the government’s need for this evidence.

Had a stipulation carried similar probative weight as the

proffered evidence, the potential for unfair prejudice may

have warranted exclusion of the exhibit. As noted above,

however, the transcript revealed more than the bare fact

that Underhill had agreed to cooperate; it indicated that

Underhill was furnishing total and voluntary cooperation.

At issue was the effect of Underhill’s cooperation on the

mind of Thevis; the transcript revealed the extent of Un-

derhill’s “doublecross” and provided an explanation for

37a

why Thevis chose to murder Underhill to prevent his

testifying rather than some less drastic action. The stipu-

lation could not have carried the same force in proving

motive. As we previously have said:

A piece of evidence can have probative value even in

the event of an offer to stipulate to the issue on which

the evidence is offered. A cold stipulation can deprive

a party “of the legitimate moral force of his evi-

dence,” 9 Wigmore on Evidence § 2591 at 589 (3rd

ed. 1940), and can never fully substitute for tangible,

physical evidence or the testimony of witnesses. In

most cases, a party has the right “to present to the

jury a picture of the events relied upon.”

United States v. Grassi, 602 F.2d 1192, 1197 (5th Cir.

1979), vacated on other grounds, 448 U.S. 902, 100 S.Ct.

3041, 65 L.Ed.2d 1131 (1983), on remand, 626 F.2d 444

(5th Cir. 1980) (quoting Parr v. United States, 255 F.2d

86, 88 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 40,

3 L.Ed.2d 64 (1958)). Accordingly, we will not disturb ~

the trial court’s discretionary decision that the prejudicial

impact of the decision did not substantially outweigh its

probative value.

Finally, we do not agree with appellants that the limit-

ing instructions necessarily confused the jury. All parties

concede that Underhill’s statements were hearsay and

could not be considered for their truth. Nevertheless, the

statements were admissible as evidence of Thevis’ knowl-

edge of Underhill’s cooperation. See, e. g., United States v.

Parry, 649 F.2d 292 (5th Cir. 1981); United States v.

Bankston, 603 F.2d 528 (5th Cir. 1979).

The court carefully instructed the jury when exhibit

47 was introduced that the statements in the transcript

were “absolute hearsay” and could not be considered for

any purpose other than motive. The court’s explanation

of this distinction was a correct statement of the law, and

rendered the distinction easily understandable to the jury.

See United States v. Parry, supra, at 295; United States

v. Wyatt, 611 F.2d 568, 569 (5th Cir. 1980).

8. The “Shoe-Mike” Evidence

In June 1977 Underhill visited Thevis in prison in

Springfield, Missouri, ostensibly to discuss settlement of

Underhill’s pending civil RICO suit against Thevis. Un-

known to Thevis, Underhill carried a small transmitter in

the heel of his shoe, permitting FBI agents to monitor

and tape the conversation. At one point Underhill told

Thevis that he had taken a polygraph test to corroborate

his story concerning the Mayes and Hanna murders, had

implicated Thevis in the murders, and had “passed with

flying colors.” Thevis responded, “No wonder you

passed.

10 The relevant part of the conversation was as follows:

Underhill: [RDU] I won't say too much right now, Mike,

look, let me show you something. I got problems. Now, look,

when I took the test for the FBI, what agent was there, uh,

car and if I saw him alive that day. I said, no, no, no.

MGT: Well didn’t they also ask

edge of it or et cetra, et cetera?

RDU: Yeah.

MGT: How did you do?

RDU: I didn’t tell any lies and they said I passed the test

with flying colors. One thing they asked me, they said that,

uh, that, that, now see I had the privilege.

MGT: You didn’t tell any lies.

RDU: No, sir, but I had the privilege. Roger Thompson

says you had the privilege. Nothing can be used in, uh, out

of this, out of this thing against anybody, and some of

things that (cough) they asked me if, if I know who killed

Ken, Ken Hanna.

[Footnote continued on page 39a]

Over strong objections by defense counsel, the trial

court admitted this conversation only as evidence showing

Thevis knew Underhill was cooperating with the govern-

ment, and sternly instructed the jury on the legal position

of polygraph evidence.” The court repeated the limiting

10 [Continued]

MGT: Yeah,...

RDU: Somebody tell you who killed him, I said yes.

MGT: You said yes, you know?

RDU: I said yes, I know, because I, I told Roger Thompson

. . . I'd tell the truth, you know. So anyway, they couldn't use

this thing to bring me before the grand jury.

MGT: But they didn't ask you any further things like

RDU: Like, uh, now Roger Thompson struck a lot of this

off?

MGT: They didn’t ask you any further things if you were

an accompilce in it.. or if you helped in any way?

RDU: They asked if I had knowledge. They asked me if

I had built a bomb. I said no. That killed Jimmy Mayes. They

asked me if I saw the bomb. I said no. They asked me if I

was downtown or saw Mayes the night that he was killed. I

said no.

MGT: Well, what’d they, what'd they, what’d you tell em

when they asked you if I did it?

RDU: I said yes.

MGT: Well, you mean you...

RDU: You wouldn’t want me to lie.

MGT: No wonder you passed.

RDU: You expect me to tell the truth.

MGT: No wonder you passed. I believe it.

RDU: I'd 1 the test with flying colors. They told

2 THE COURT: Ladies and gentlemen, when you were about

to hear these tapes, the Court gave you a limiting instruction

as to how to view the tapes and the transcript. The tapes

which you have just heard and the transcripts which were

admitted for the limited purpose for which I have described its

admission include a reference to a polygraph examination taken

by Roger Underhill. You are not to draw any inference from

the statement that Robert—you are not to draw any inference

from any statement about any polygraph examination that

Roger Underhill’s testimony is any more credible than any

40a

instruction in its final charge to the jury. Despite these

limiting instructions, appellants contend that the pro-

bative value of the evidence was far outweighed by the

unfair prejudice to Thevis evoked by Underhill's refer-

ences to the polygraph test, especially in light of the prior

other witness, for under the law, the results of a polygraph

or lie detector test are considered to be scientifically unreliable

evidence and inadmissible for that very purpose.

I know of no court in which the results of a polygraph test

will be admitted for the purpose of showing any scientific

results thereof. The references to the test are not to be con-

sidered by you in any manner which might bolster the credi-

bility of Roger Underhill. The statement as to the polygraph

test or lie detector test as it is sometimes called was admitted

for the extremely limited purpose of showing, if it does, that

Underhill had cooperated or was cooperating with the govern-

ment, and that Underhill told the defendant, Mr. Thevis, of this

cooperation in the manner related with reference to his state-

ments about a polygraph test.

Whether or not this is true is a question of fact for you to

resolve. This evidence is not admitted for any other purpose,

and except for the limited purpose I have outlined, it has no

probative value at all. It is, of course, not admitted against

anyone in the case but Mr. Thevis.

Now, in addition to that, the conversations purported to be on

these tapes between Mr. Thevis and Mr. Underhill contain

numerous statements by one or the other as to what some

person has said to one or the other of them. I instruct you

that when an individual relates what someone else had said to

him, it is hearsay and has no probative bearing. And, this

tape, as I have indicated, is admissible only for the purpose

of showing, if it does, cooperation by Mr. Underhill with the

Government and showing, if it does, the knowledge on the part

of Mr. Thevis that Mr. Underhill was cooperating with the

Government, if it does show that.

Any references to polygraph examinations have no merit, no

bearing, and no evidentiary value in the case except to show,

if they do, what one individual may have told the other as to

his cooperation with the Government. I reiterate that a poly-

graph test is completely without admissibility as to its results,

and would not be admitted into evidence in any court that I

know of for the results thereof.

4la

admission of exhibit 47 as motive evidence. Therefore,

appellants claim the trial court committed reversible error

by not excluding the evidence under Rule 403.

We reject appellants’ argument. While they are cor-

rect in conceding that exhibit 47 provided the jury with

strong motive evidence, that exhibit required the jury to

infer Thevis’ knowledge from the fingerprints on the

exhibit. In contrast, the “shoe-mike” conversation was

direct evidence that Thevis knew Underhill was cooperat-

ing with the government fully and voluntarily, and thus

the conversation was highly probative in its own right.

As to the danger of unfair prejudice, we are especially

sensitive to the possibility of prejudice arising from court-

room references to polygraph tests. As a result, this

circuit has ruled that polygraph results are inadmissible

as substantive evidence. E.., United States v. Masri, 547

F.2d 932, 936 (5th Cir.), cert. denied, 431 U.S. 932, 97

S.Ct. 2640, 53 L.Ed.2d 249 (1977); United States v.

Cochran, 499 F.2d 380, 393 (5th Cir. 1974), cert. denied,

419 U.S. 1124, 95 St.Ct. 810, 42 L.Ed.2d 825 (1975).

Nevertheless, we note that here the reference to Under-

hill’s polygraph was not admitted for its truth, but as

evidence that Thevis knew Underhill was cooperating with

the government. Given the very high probative value of

this evidence and the strong limiting instructions, we are

unable to say that the danger of unfair prejudice substan-

tially outweighed the conversation’s probative value. We

therefore find no abuse of discretion in admitting the

evidence.

21 We note that Thevis’ statements also could be considered party

admissions, excepted from the hearsay rule under Fed.R.Evid.

801(d)(2). The trial court, however, ruled the conversation was

not a party admission, and because we have upheld the trial court’s

theory of admissibility, we need not deride if the conversation in

fact constituted a party admission.

4. Statements Concerning the Witness Protection

Program 0

The trial court also permitted the government to in-

troduce testimony that Underhill had feared Thevis would

kill him and was preparing to enter the government's wit-

ness protection program. The court limited the jury’s

consideration of this evidence to explaining both Under-

hill’s actions before his death and the government’s failure

to depose him. The court also instructed the jury in its

final charges “to draw no inferences unfavorable to the

defendants from the fact that government witnesses had

been placed in the witness protection plan.” Appellants

contend that the probative value of this evidence is sub-

stantially outweighed by the unfair prejudice which could

result from the jury inferring that because government

officials placed Underhill in the witness protection pro-

gram, his fear Thevis might kill him must have been true.

Although we agree with this court’s statement in

United States v. Partin, 552 F.2d 621, 644-45 (5th Cir.),

cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189

(1979), that references to the witness protection program

“must be handled delicately” and that the prosecution

should not be permitted to exploit any prejudice, we again

find that the probative value of this evidence was rela-

tively high. It provided explanations for the government’s

failure to depose Underhill as well as a context for the

jury to interpret Underhill’s actions prior to his death.

Nor do we find that the prosecution took unfair advantage

of the references to the program. The trial court’s limit-

ing instruction, moreover, reduced the risk of unfair

prejudice. We find no abuse of discretion in the ad-

mission of this evidence.

5. Exclusion of the Frame-Up Evidence

One of the theories of the defense at trial was that the

FBI had conspired to frame Thevis by suborning perjury

and false evidence. William O. Rhodes testified that Un-

43a

derhill and FBI agent Paul King had collaborated to pro-

cure Rhodes’ false testimony in the separate trial of

Gilbert Deitch, a lawyer who had worked for Thevis.”

Robert Frazier, a deputy United States Marshal, testified

that Underhill had said King was trying to get him to lie

to frame Thevis. To bolster its spoilation theory, the de-

fense offered the testimony of John Reynolds, the FBI

polygraph examiner, that Rhodes had failed polygraph

examinations relating to his allegedly procured anti-

Thevis testimony; the defense also offered Rhodes’ own

testimony, as well as that of Reynolds, that agent King

was aware of these failures. In addition, the defense

offered the testimony of Michael Clutter, an attorney who

also had worked for Thevis, to corroborate Rhodes’ charge

that Deitch had been tried on perjured testimony with

the knowledge of government officials. The trial court ex-

cluded Clutter’s and Reynolds’ testimony, and that part

of Rhodes’ testimony relating to the polygraph examina-

tion. The court concluded that because the probative value

of the evidence was slight, while the risk of prejudice and

jury confusion was high, Fed.R.Evid. 403 mandated ex-

clusion. Appellants contend this ruling constituted re-

versible error.

We disagree. In contrast to the government proffers

discussed above, which were highly probative of key facts,

the defense offer concerned the conduct of government

officials in a wholly separate trial. Rhodes’ testimony was

admissible only because it tended to impeach Underhill

and agent King. Thus the proffered evidence was mar-

ginally probative as tending to substantiate Rhodes’

credibility, but did not directly attack the evidence offered

in this trial. On the other hand, the danger of prejudice

and confusion of the jury was relatively high. Although

the polygraph evidence was offered ostensibly to show

knowledge on the part of agent King, its relevance to the

22 Deitch was charged along with Thevis and others in the original

indictment. His trial was severed, and he was acquitted.

44a

frame-up theory was almost inextricably tied to the re-

liability of polygraph results as substantive evidence. The

danger was great that the jury would have inferred

agent King participated in a frame-up because he knew

about the polygraph results which by themselves ac-

curately showed Rhodes lying, rather than because King

merely believed Rhodes was lying. Thus the danger was

substantial that the jury would rely on the polygraph

results for their truth, rather than only as evidence of

King’s state of mind. Clutter’s testimony, moreover, re-

lated to an entirely different trial, and did not sub-

stantiate Rhodes’ charge that the government was offer-

ing perjured testimony in this case. Against this back-

ground we cannot say that the trial judge abused his

discretion in excluding the proffered testimony.

C. Other Evidentiary Rulings

1. Use Immunity for Defense Witnesses

Appellants filed a pre-trial motion seeking judicial use

immunity for George Thevis,“ father of appellant Michael

Thevis. They advised the court that George Thevis’ testi-

mony was crucial to the defense, but that he would invoke

the fifth amendment if called to testify. The court per-

mitted the defense to proffer George Thevis’ expected

George Thevis would have testified that he was with

Thevis and Hood on October 25, 1978, from 11:00

a.m. to 11:40 a.m., at the Journey’s End Motel. Hood

and George Thevis then left Thevis for about twenty

minutes. Appellant Thevis was still at the motel

28 Thevis’ pre-trial motion requested immunity for several wit-

nesses in addition to George Thevis. On appeal, however, appellants

contest only the denial of immunity to George Thevis. Appellants,

moreover, have abandoned all theories of immunity raised at trial

(including a Sixth Amendment compulsory process argument) other

than the due process argument.

when they returned. The three of them stayed to-

gether until about 1:00 p.m. George Thevis refused

to testify because of potential prosecution for “har-

boring” his son, who was then an escaped prisoner.

The trial court held that it lacked authority to grant

immunity to any witness. Before this court, appellants

concede that the court lacked statutory authority to grant

immunity, see United States v. Smith, 436 F.2d 787 (5th

Cir.), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29

L.Ed.2d 142 (1971); they contend, however, that a de-

fendant’s due process right to a fair trial gives trial

courts inherent authority to confer use immunity. Ap-

pellants’ due process argument subdivides into two parts.

First they claim that because George Thevis’ testimony

was exculpatory and unavailable from any other source,

due process requires immunity to preserve the integrity of

the truthfinding function. Second they urge that the gov-

ernment’s granting immunity to its witnesses while deny-

ing inemunity to George Thevis skewed the evidence

agai... appellants and denied them a fair trial.

The Supreme Court has not decided whether courts

may grant defense witnesses use immunity, and the cir-

cuit courts which have addressed the issue have produced

widely divergent opinions. On the question whether judi-

cial use immunity is necessary for essential exculpatory

testimony, the courts have split three ways. The Third

Circuit, in Virgin Islands v. Smith, 615 F.2d 964 (3d

Cir. 1980) held that such immunity is available in cer-

tain circumstances.* On the other hand, the Seventh,

In Smith, the defendant requested immunity for an exculpatory

witness who was under the jurisdiction of the juvenile authorities

of the Virgin Islands Attorney General. That office offered the

witness immunity on the condition (prompted by prosecutorial

courtesy) that the United States Attorney consent. For unex-

plained reasons, this consent was refused. The Third Circuit held

that judicial use immunity was available when: (1) immunity was

properly sought in the district court; (2) the witness is available

46a

Eighth and District of Columbia Circuits have held that

such immunity is unavailable. In re Daley, 549 F.2d 469,

479 (7th Cir. 1976), cert. denied, 434 U.S. 829, 98 S.Ct.

110, 54 L.Ed.2d 89 (1977); United States v. Graham,

548 F.2d 1302, 1315 (8th Cir. 1976); United States v.

Smith, 542 F.2d 711, 715 (7th Cir. 1976); Earl v.

United States, 361 F.2d 531, 534-35 (D.C.Cir. 1966),

cert. denied, 388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d

1370 (1967) (dealing with transactional immunity).

The remaining circuits which have addressed the issue

have denied immunity in the specific cases before them,

but left open whether immunity would ever be available.

United States v. Turkish, 623 F.2d 769, 771-79 (2d Cir.

1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66

L.Ed.2d 800 (1981); United States v. Lenz, 616 F.2d

960, 962-64 (6th Cir.), cert. denied, 447 U.S. 929, 100

S.Ct. 3028, 65 L.Ed.2d 1124 (1980); United States v.

Klauber, 611 F.2d 512, 517-20 (4th Cir. 1979), cert.

denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261

(1980) ; United States v. Alessio, 528 F.2d 1079, 1081-82

(9th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49

L.Ed.2d 1184 (1976).

The Fifth Circuit has not explicitly determined

whether due process may require a court to grant a

defense witness use immunity.“ We conclude, however,

to testify; (3) the proffered testimony is both essential and clearly

exculpatory; and (4) no strong governmental interests countervail

against an immunity grant.

25 No Fifth Circuit case has upheld a grant of immunity by a

trial court, and our cases have strongly suggested, without spe-

cifically deciding, that courts lack such power under any circum-

stances. FE. g., United States v. Herbst, 641 F.2d 1161 (5th Cir.

1981); United States v. D’Apice, 664 F.2d 75 (5th Cir. 1981).

D’Apice specifically did not rule on whether the due process rights

of a defendant might compel court-granted use immunity, but did

hold that courts otherwise have no inherent power to grant im-

munity. Herbst involved constitutional claims, but the court held

that in absence of a specific proffer of the testimony for which the

immunity was requested, the record was insufficient to reach the

constitutional issues.

47a

after reviewing the various circuit opinions and con-

flicting policy arguments, that district courts may not

grant immunity to defense witnesses simply because that

witness has essential exculpatory information unavail-

able from other sources. As noted by the Second Circuit

in Turkish, supra, the two major arguments against

granting such judicial use immunity are that the im-

munity decision would carry the courts into policy as-

sessments which are the traditional domain of the execu-

tive branch, and that the ee would be subject to

abuse.

We find these argument: persuasive, and agree that

the immunity decision requires a balancing of public

interests which should be left to the executive branch.

While a grant of use immunity theoretically does not

improve the legal position of the person immunized, in

that he still can be prosecuted for his crime, in practice

the burden placed on the government to prove that any

evidence obtained against the immunized suspect is not

tainted by the suspect’s statement can significantly im-

pair future prosecutions.** As the Second Circuit ob-

served, [Clonfronting the prosecutor with a choice be-

tween terminating prosecution of the defendant or jeop-

ardizing prosecution of the witness is not a task congenial

to the judicial function.” Turkish, supra, at 776. See

id. at 779 (Lumbard, J., concurring in part and dis-

26 Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32

L.Ed.2d 212 (1972) held that the government has a “heavy burden”

to prove that its evidence has not been tainted by the immunized

testimony. If the criminal investigation is complete prior to the

immunity grant, thea immunity raises few problems. In the com-

mon situation in which the novestigation is continuing, however,

immunity may significantly interfere with the presentation of

crucial evidence obtained after the immunity grant unless the prose-

cution takes such extraordinary steps as to arrange for a new team

of prosecutors, totally unfamiliar with the case, to continue the

investigation. For smaller prosecutors’ offices, such measures may

be impossible given the staff and financial resources available.

48a.

senting in part). An immunity decision, moreover, would

require a trial judge, in order to properly assess the pos-

sible harm to public interests of an immunity grant, to

examine pre-trial all the facts and circumstances sur-

rounding the government’s investigation of the case. Such

collateral inquiries would necessitate a significant ex-

penditure of judicial energy, possibly to the detriment of

the judicial process overall, and would risk jeopardizing

the impartiality and objectivity of the judge at trial. Id.

Nor are we convinced that any safeguards imposed on

the grant of judicial use immunity adequately reduces the

risk of abuse by co-defendants, co-conspirators, friends,

or employees. Whatever may be gained in fairness in a

particular trial in which true exculpatory evidence may

be obtained only through judicial use immunity, there-

fore, may well be lost through the subsequent effect of

abuse on the integrity of the judicial process as a whole.

Finally, we note that the fifth amendment privilege is

not the only one which may suppress probative evidence

from the judicial process; crucial facts, for example, also

may be shielded from disclosure by the attorney-client or

loctor-patient privilege. Although abrogating the fifth

amendment privilege through general use immunity for

exculpatory testimony may conflict less with important

public interests than abrogating these other privileges,

we conclude that the potential interference is nevertheless

great enough that the legislature, rather than the courts,

should decide on such a course.

Appellants’ second argument, that governmental abuse

of the immunity process might warrant judicially-

27 The incentive for abuse is strong given that the witness, be-

cause of immunity, is in no wore a legal position for having testi-

fied, and because of the heavy burden on the government to prove

lack of taint, the witness in practice may improve his legal position.

Nor are we convinced that perjury prosecutions are an adequate

deterrent. Successful perjury prosecutions are not common, and in

many cases the 3 for the substantive erime will far surpass

perjury penalties.

49a.

compelled use immunity, presents a more compelling case.

Some of the courts rejecting a general due-process-based

use immunity for exculpatory testimony have neverthe-

less indicated that governmental abuse might present a

different situation. E. g., Klauber, supra, at 517-19 (dis-

tinguishing abuse cases); Earl, supra, at 534 n.1. Two

federal cases which granted immunity, moreover, argu-

ably involved abuse situations. United States v. Morrison,

535 F.2d 223 (3d Cir. 1976) (government, after previ-

ously showing no interest in prosecuting potential wit-

ness, threatened prosecution after witness decided to

testify for defendant) ; United States v. De Palma, 476

F.Supp. 775 (S.D.N.Y. 1979) (government’s choosing

among potential defendants, granting immunity to two

for their testimony against a third). Finally, Supreme

Court precedent supports the proposition that the govern-

ment cannot so abuse its discretion as to render the trial

unfair. E.g., Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963) (government has a general

duty to disclose exculpatory evidence).

We, however, need not decide in this case if a court

may grant immunity when it finds government abuse,“

because we conclude that no abuse occurred in the pros-

ecution of Michael Thevis. George Thevis’ testimony

was offered to prove a specific point at issue in the

trial: whether Michael Thevis and Bart Hood were

present at the scene of the Underhill-Galanti murders.

The government evidence placing Thevis and Hood at

the scene consisted entirely of non-immunized testimony;

28 Although we need not decide day exactly what circumstances

might constitute government abuse of the immunity process, we

caution that a trial is not a “symmetrical proceeding” which re-

quires a court to grant the defendant’s witnesses immunity because

the government uses immunized witnesses. See United States v.

Turkish, 623 F.2d 769, 774-75 (2d Cir. 1980).

20 The government presented the eye-witness testimony of two

plane pilots placing Thevis and Hood at the scene, as well as the

testimony of Thevis’ former cellmate that Thevis had confessed to

the Underhill-Galanti murders. See part I of this opinion, supra. _

50a

hence, no abuse occurred. We conclude, therefore, that

under the circumstances, the trial court did not err in

refusing to grant George Thevis use immunity.

2. The Buckhout Testimony

At trial the government offered the testimony of two

experienced airplane pilots who identified Thevis and

Hood as men they had seen at Underhill’s property

around the time Underhill and Galanti were murdered.

The defense attempted to counter this evidence through

the testimony of Dr. Robert Buckhout, an expert on the

subject of eyewitness identification. Specifically, Buck-

hout offered to testify that the ability of airplane pilots

to make eyewitness identifications is not greater than

that of other persons. The trial court excluded the

proffered testimony, concluding that the subjects of per-

ception, memory, and identification were within the ex-

pertise of the jury and therefore the probative value of

the evidence was substantially outweighed by the possi-

bility of prejudice emanating from this “expert” testi-

mony. Appellants claim this ruling was error.

Rule 702, Fed.R.Evid., permits expert testimony when

the trial court determines that “scientific, technical, or

other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in

issue. * As with all evidentiary rulings, the admis-

sion of such testimony is addressed to the sound discre-

tion of the trial court. United States v. Lopez, 543 F.2d

1156 (5th Cir. 1976). We find no abuse of discretion in

the trial court’s ruling. Buckhout did not comment spe-

cifically on the identification made by the two government

witnesses, but instead testified generally as to problems

with eyewitness identification and that pilots as a group

were not better equipped than ordinary witnesses to make

identifications. To admit such testimory in effect would

permit the proponent’s witness to comment on the weight

and credibility of opponents’ witnesses and open the door

to a barrage of marginally relevant psychological evi-

dence. Moreover, we conclude, as did the trial judge,

that the problems of perception and memory can be ade-

quately addressed in cross-examination and that the jury

can adequately weigh these problems through common-

sense evaluation. Our conclusion is supported by other

circuits’ uniform approval of excluding testimony exactly

like Buckhout’s. United States v. Fosher, 590 F.2d 381,

382-84 (Ist Cir. 1979) (Buckhout’s specific testimony

excluded) ; United States v. Watson, 587 F.2d 365, 368-

69 (7th Cir. 1978), cert. denied, 489 U.S. 1182, 99 S.Ct.

1055, 59 L.Ed.2d 95 (1979); United States v. Brown,

540 F.2d 1048, 1053-54 (10th Cir. 1976), cert. denied,

429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1977);

United States v. Brown, 501 F.2d 146 (9th Cir. 1974),

rev’d on other grounds sub nom. United States v. Nobles,

422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975)

(Buckhout’s specific testimony excluded); Jnited States

v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir. 1978);

United States v. Collins, 395 F.Supp. 629 (M.D.Pa.),

aff'd, 523 F.2d 1051 (8rd Cir. 1975) (Buckhout’s specific

testimony excluded). See also, United States v. Webb,

625 F.2d 709, 710-11 (5th Cir. 1980) (trial court did

not err in excluding expert testimony that defendant

lacked “propensity to commit a violent act”); United

States v. Sims, 617 F.2d 1371, 1374-75 (9th Cir. 1980)

(trial court did not err in failing to appoint psychologist

to assist defense through testimony on the unreliability of

eyewitness identification).

3. The McMurray Identification of Hood

As part of its case on Count Ten the government in-

troduced the testimony of Milton E. McMurray who iden-

tified Thevis, Evans and Hood as the persons he had

seen together shortly after the Underhill-Galanti murders.

McMurray did not come forward as a witness until Sep-

tember 5, 1979, when he advised prosecutors and the FBI

that he had seen Thevis, Evans, and an unidentified man

together in Evans’ car around 12;10 and 12:25 p.m. the

52a

day of the Underhill-Galanti murders. McMurray de-

scribed the unidentified man, but was not shown a photo-

spread, lineup, or otherwise asked to identify him as

Hood. On September 7, McMurray, was interviewed by

prosecutors at the United States Courthouse in Rome,

Georgia, prior to testifying at trial; after the interview,

he left for breakfast. Hood, meanwhile, had arrived early

at the courthouse and was sitting with his wife on a

bench in the hallway when McMurray returned. Mc-

Murray saw Hood and identified him to prosecutors as

the man he had seen with Thevis and Evans. Hood now

claims that this encounter was staged by prosecutors and

violated his sixth amendment right to counsel. In addi-

tion, Hood asserts that even if the encounter did not

violate his sixth amendment rights, it violated due process

because it was unduly suggestive and failed to meet the

tests of reliability set forth in Neil v. Biggers, 409 U.S.

188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

We reject both contentions. The record is devoid of

any evidence that the prosecutors staged the encounter

between McMurray and Hood; hence we conclude that

the encounter was a purely inadvertent one which did

not violate the sixth amendment. The parties do not

dispute that Hood enjoyed a sixth amendment right to

counsel at this stage of his criminal prosecution. See

Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d

411 (1972); Lomaz v. Alabama, 629 F.2d 413, 414-15

(5th Cir. 1980), cert. denied, 450 U.S. 1002, 101 S.Ct.

1712, 68 L.Ed.2d 205 (1981). In United States v. Wade,

888 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967),

the Supreme Court held that an accused was entitled

to counsel at a post-indictment encounter” to help avoid

possible abuses in the identification procedure which could

rob the defendant of a fair trial. Jd. at 228-39, 87 S.Ct.

% The court stated that its rationale applied to lineups, “show-

ups”, or one-on-one confrontations. Wade, 388 U.S. at 229, 87 S.Ct.

at 1933.

53a

at 1933-39. See Gilbert v. California, 388 U.S. 263, 87

S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The rationale stated

by the Court was that:

the confrontation compelled by the State between the

accused and the victim or witnesses to a crime to

elicit identification evidence is peculiarly riddled with

innumerable dangers and variable factors which

might seriously, even crucially, derogate from a fair

trial.

Wade, supra, at 228, 87 S.Ct. at 1933 (emphasis added).

The Court’s concern in these cases is with the misuse

of identification procedures by the adverse party (prose-

cutor or police) which can result in a misidentification

and erroneous conviction. Having opposing counsel pre-

sent serves as a deterrent to such misuse and helps the

defendant fully exercise his rights at trial by effectively

reconstructing any unfairness in the identification proce-

dures. Id. at 230-36, 87 S.Ct. at 1934-37. Consequently

when an identification does not implicate the adversary

process, the deterrent effect of counsel is unnecessary and

the risk of prejudice negligible. A purely inadvertent

meeting between the witness and the defendant does not

involve any danger that the adverse party will abuse the

identification process. Moreover, no “procedures” exist

for defense counsel to reconstruct at trial. United States

v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619

(1973) (holding that risks inherent in photographie dis-

plays did not warrant assistance of counsel). See Gilbert

v. California, 388 U.S. 268, 265-67, 87 S.Ct. 1951, 1952-

54, 18 L.Ed.2d 1178 (1967) (taking of handwriting

exemplars did not require assistance of counsel because

of “minimal risk that the absence of counsel might de-

rogate from [a] fair trial”). We conclude, therefore,

that the absence of counsel] at a purely inadvertent meet-

ing of a witness and defendant does not constitute a

54a

violation of the right to counsel." See United States v.

Gentile, 530 F.2d 461 (2d Cir.), cert. denied, 426 U.S.

936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976) (dangers

which prompted counsel requirement in Wade are absent

in inadvertent identification).

Finding no sixth amendment violation, however, does

not end the inquiry. As the Supreme Court noted in

Kirby v. Illinois, 406 U.S. 682, 690-91, 92 S.Ct. 1877,

1882-83, 32 L.Ed.2d 411 (1972), a court must scrutinize

any pretrial confrontation for possible due process viola-

tions. The basic standard for due process violations is

whether the identification procedure creates “a very sub-

stantial likelihood of irreparable misidentification.” Sim-

mons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967,

971, 19 L.Ed.2d 1247 (1968). See Manson v. Brathwaite,

432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140

(1977); Neil v. Biggers, 409 U.S. 188, 196-98, 93 S.Ct.

375, 380-81, 34 L.Ed.2d 401 (1972). Accordingly, this

circuit has adopted a two-step analysis of the due process

issue:

First, as a threshold inquiry, the Court must decide

whether the identification procedure was unneces-

sarily suggestive. A finding of impermissible sug-

gestiveness raises concern over the reliability of

identification and triggers closer scrutiny by the

Court to determine whether such a procedure cre-

ated a substantial risk of misidentification.

Allen v. Estelle, 568 F.2d 1108, 1112 (5th Cir. 1978).

See Preacher v. Estelle, 626 F.2d 1222, 1223 (5th Cir.

1980), cert. denied, 450 U.S. 930, 101 S.Ct. 1389, 67

L.Ed.2d 362 (1981).

1 A contrary rule would violate common-sense. Obviously, attor-

neys cannot follow their clients or witnesses around twenty-four

hours a day in order to prevent any chance meetings which could

create sixth amendment problems.

55a

We conclude that the identification at issue here was

not unnecessarily suggestive. See United States v. Davis,

487 F.2d 112, 122 (5th Cir. 1973), cert. denied, 415 U.S.

981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974) (observation

of defendant by witness immediately prior to trial did

not violate due process). The purely inadvertent meet-

ing contained no hint of suggestiveness. The prosecutor

did not show McMurray pictures of Hood or ask him

to view Hood in a lineup. The prosecutor did not present

Hood to McMurray and ask for an identification. Nor

did the prosecutor even ask McMurray if he recognized

the man in the hallway. Moreover, nothing about Hood

suggested that he was a criminal defendant in this case.

He was not handcuffed, for example, or standing alone

among uniformed police officers. Far from being sug-

gestive and unreliable, the spontaneous identification

that resulted from McMurray’s inadvertent meeting with

Hood “might be said to emphasize the witness’ reliability,

rather than the reverse.” Allen v. Moore, 453 F.2d 970,

974 (Ist Cir. 1970), cert. denied, 406 U.S. 969, 92 S.Ct.

2422, 32 L.Ed.2d 668 (1972). Our conclusion is sup-

ported by numerous cases from other circuits holding

that identifications resulting from inadvertent meetings

do not violate due process. E. g., United States v. Di

Stefano, 555 F.2d 1094, 1101-1102 (2d Cir. 1977);

United States v. Colclough, 549 F.2d 937, 941-42 (4th

Cir. 1977) ; United States v. Freie, 545 F.2d 1217, 1223-

24 (9th Cir.), cert. denied, 430 U.S. 966, 97 S.Ct. 1645,

52 L.Ed.2d 356 (1976) ; United States v. Neverson, 463

F.2d 1224, 1230-31 (D.C.Cir. 1972) .*

* We do

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